the federal contractor vaccine mandate: what you need to know

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December 6, 2021

The Federal Contractor Vaccine Mandate: What You Need to Know

Presented by:

Brian Gocial, Blank Rome LLPStephanie Harden, Blank Rome LLP

Frederick “Gus” Sandstrom, Blank Rome LLP


Today’s Speakers

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Stephanie M. HardenPartner, Government Contracts202.420.2585 | [email protected], DC

Frederick “Gus” SandstromPartner, Labor & Employment215.569.5679 | [email protected]

Brian S. GocialPartner and Member of the Board, NDIA Delaware Valley Chapter215.569.5424 | [email protected]

mailto:[email protected]




State Responses to Vaccine Mandate

• Numerous states have filed lawsuits challenging the contractor mandate:• Southern District of Georgia (Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West

Virginia)• Southern District of Texas (Texas)• Middle District of Florida (Florida)• Eastern District of Missouri (Montana, Alaska, Arkansas, Iowa, Missouri, Nebraska, New Hampshire,

North Dakota, South Dakota, Wyoming); and • Eastern District of Kentucky (Kentucky, Ohio, and Tennessee) *PRELIMINARY INJUNCTION

PROHIBITING ENFORCEMENT GRANTED ON NOV. 30, 2021*• Primary arguments:

• Unconstitutional / exceeds presidential authority• Improperly circumvented notice-and-comment rulemaking• Rule itself is arbitrary and capricious (e.g., does not promote efficiency)• Requires compliance with shifting guidance• Etc.

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Covered Contracts

• The EO applies broadly to prime and subcontracts at all tiers • Limited exceptions:

• Grants

• Contracts/agreements with Indian Tribes

• Contracts/subcontracts below the simplified acquisition threshold (currently $250k)

• Employees who perform work outside of the U.S. and its outlying areas

• Subcontracts solely for the provision of products or solely performed outside of the U.S. and its outlying areas

• Agencies are encouraged to apply mandate even more broadly• Implementation is through contract clauses

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Covered Contractor Workplaces

• Vaccination required for all employees of a covered contractor who:• Work “on or in connection with” a covered contract or

• Work at a covered contractor workplace

• Unless an exemption is granted (medical or religious)

• “Covered contractor workplace”:• Any location “controlled by a covered contractor”

• At which any employee who works “on or in connection with” a covered contract is “likely to be present”

• Does not include a covered contract employee’s residence

Takeaway: If any employee “likely to be present” at a contractor workplace works “on or in connection with” a covered contract, all employees who work at that location must be vaccinated

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Carveouts for Specific Locations

• Considerations:• Are there any employees at the location who perform work “on” federal

contracts or subcontracts?

• Any employees who perform “in connection with” federal contracts/subcontracts?

• Any employees from other offices who perform “on or in connection with” federal contracts/subcontracts who are “likely” to visit?

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November 1st Guidance

• Updated FAQ Issued by Safer Federal Workplace Taskforce:

• Contractors may retain non-compliant employees after mandate deadline; the contractor should “determine the appropriate means of enforcement”

• “Model” approach to enforcement is that of federal agencies – e.g., “a limited period of counseling and education, followed by additional disciplinary measures if necessary. Removal occurs only after continued noncompliance.”

• “Where covered contractors are working in good faith and encounter challenges with compliance with COVID-19 workplace safety protocols, the agency contracting officer should work with them to address these challenges. If a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken.”

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November 1st Guidance

• White House Briefing• Emphasized that the Government’s focus will be on whether the contractor is

“working to comply”• E.g., no contract termination for non-compliance on deadline if working toward

compliance

• Will look to whether the contractor:• Has appropriate policies (e.g., masking, distancing, and vaccination) • Is communicating the policy to employees• Is collecting documentation regarding vaccination status• Is engaging in outreach, education, and counseling for non-compliant employees

• Encouraged contractors to work with their Contracting Officer regarding next steps if unable to persuade employees to get vaccinated

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November 4th Guidance

• Deadline for covered contractor employees to have final vaccine dose extended to January 4, 2022

• OSHA Emergency Temporary Rule issued• Applies to employers with 100+ employees

• Requires vaccination or weekly testing after January 4th

• Does not apply to workplaces covered by the federal contractor mandate

FAR Case 2021-021 remains open: will there be other major changes to the contractor mandate during the rulemaking process?

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Modifications Implementing EO 14042

• Bilateral vs. unilateral modifications • Important to reserve rights to recover added costs if the modification is

bilateral• Added costs may include:

• HR expenses – e.g., processing accommodation requests, responding to employee questions, addressing non-compliance

• Legal expenses

• Recruiting/personnel costs if the contractor ultimately must replace employees

• Costs of implementing accommodations – e.g., physical barriers, relocating employees

• If the mandate is likely to cause significant disruptions, reserve rights to seek schedule extension too

• Consider laying groundwork regarding implementation challenges in responding to modifications

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EO 14042: Key Employment Law Considerations

• Relationship with OSHA ETS• OSHA ETS “does not apply to workplaces subject to EO 14042”• What is a “workplace”?

• Must take affirmative steps to confirm employee vaccine status• Cannot simply provide employees with notice of vaccine requirement Employees

must provide – and contractors must retain – record of vaccination• Documentation requirements are flexible (CDC card, printout of medical records,

other official documents)• Digital records are permitted, but no self-certification without documentation• Employees must attest to accuracy of records• Immunity from prior infection is not vaccination

• Employers may ask employees about vaccine status• Not a HIPPAA or ADA violation

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EO 14042 and Reasonable Accommodation

• Vaccine mandate is subject to reasonable accommodation obligation for employees who legally entitled to medical or religious exemption

• Medical Exemption• Well-established ADA reasonable accommodation process• Very few employees will be medically ineligible for vaccination• Typical issue will be documented allergy to vaccine components

• Religious Exemption• Largely untested and therefore complicated for employers• Legal standard is conflict with “sincerely held” religious belief• More employer-favorable “undue hardship” standard than under ADA

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Medical Exemption: Temporary Medical Conditions

• Employees may have temporary conditions that require deferral of vaccination

• Most common examples:• Current Covid-19 infection• Recent administration of monoclonal antibodies or convalescent plasma for

COVID-19 treatment • Heart inflammation (myocarditis or pericarditis) following first dose of mRNA

vaccine• Employees are not covered by ADA, but . . .• Federal guidance recommends temporary accommodation

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Religious Exemption: Overview

• Religious exemption is fertile ground for employees seeking to avoid vaccination for any reason (irrespective of connection to religion)

• Title VII provides broad legal protection for religious beliefs• Statutory definition of “religion” includes “all aspects of religious observance

and practice as well as belief,” not just practices that are mandated or prohibited by a tenet of faith

• Supreme Court: Protected religious beliefs “need not be confined in either source or content to traditional or parochial concepts of religion.”

• EEOC Guidelines: Protection extends to “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”

• Very little authority addressing standard for religious accommodation

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Religious Exemption: Decisional Framework

• Step 1: Is the employee’s accommodation request based on a sincerely-held religious belief?

• Step 2: Does the employee’s sincerely-held religious belief truly prohibit Covid-19 vaccination?

• Step 3: Would accommodation of the employee’s sincerely-held religious belief cause undue hardship?

• Important: Federal contractor vaccine mandate does not eliminatereligious (or medical) exemption requirements

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Step 1: Sincerely-Held Religious Belief

• Must typically assume sincerity of employee’s stated religious belief• Best practices to assess sincerity of belief:

• Require initial written accommodation request stating beliefs and need for exemption from vaccine requirement

• Provide employee submitting requests with follow-up questionnaire to document basis for exemption

• In addition to seeking further information regarding tenets of religion, questions should target potential inconsistencies between past actions and stated beliefs (i.e., prior vaccination or use of medications)

• Questionnaire also serves purpose of creating foundation to challenge need for employee to have exemption based on employee’s past actions

• May request confirmation of religious belief from spiritual leader, if one exists

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Step 2: Does sincerely-held belief prohibit vaccination?

• Most major religious leaders have stated that tenets of their religion do not prohibit Covid-19 vaccination

• Analyze accommodation request and questionnaire answers for potential inconsistencies between stated belief and past actions

• Common issues:• “My body is a temple and cannot be violated by a needle” (has employee received

other vaccinations?)• “I cannot use a vaccine developed with fetal stem cells” (many other vaccines and

common medications – ibuprofen, acetaminophen, aspirin, antihistamines – use fetal stem cell lines)

• “Because of my religion, I have a moral objection to mandatory vaccination” (this likely is not based on religious belief)

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Step 3: Undue Hardship

• Title VII undue hardship standard is less stringent than the ADA standard

• A religious accommodation creates an undue hardship if it requires the employer “to bear more than a de minimis cost”

• Undue hardship includes impacts on business operations that may be difficult to quantify as monetary costs

• Workplace safety, interplay with other legal obligations, decreased efficiency due to additional masking and distancing requirements under incorporated CDC guidance

• Contractor vaccine mandate may support undue hardship determination where requested accommodation creates conflict with requirements of agencies or other contractors

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A Final Thought: Recalcitrant Employees

• What about employees who refuse to be vaccinated or refuse to provide documentation?

• Federal guidance on these issues has evolved:“A covered contractor should determine the appropriate means of enforcement with respect to its employee at a covered contractor workplace who refuses to be vaccinated and has not been

provided, or does not have a pending request for, an accommodation. This may include the covered contractor using its usual processes for enforcement of workplace policies, such as

those addressed in the contractor’s employee handbook or collective bargaining agreements.”• Emphasis on education and progressive discipline, with termination only after

continued noncompliance• Must treat employees as unvaccinated, with appropriate safety

protocols (i.e., masking/testing)

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Best Practices for Contractors

1. Mandate vaccination for all covered employees• Provide clear, written communications to employees about mandate• Include information about deadlines for vaccine doses

2. Collect vaccination data for covered employees (vaccine cards)3. Send targeted communications to non-compliant employees4. Process accommodation requests5. Evaluate operational impact if required to terminate non-compliant employees6. Engage in dialogue with Contracting Officer(s) regarding compliance efforts and

challenges7. Delay termination decisions pending further guidance from Contracting Officer(s)8. Reserve rights to recover added costs and/or obtain schedule extension

Document, Document, Document….Memos to File, Analyses, Correspondence with Contracting Officer(s)

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Questions?

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• Please use the Q&A button on the left side of your screen to submit questions to our presenters.

• If we do not have a chance to respond during the live session, we will follow up with you after the session.


To stay on top of these issues…

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https://governmentcontractsnavigator.com https://blankromeworkplace.com

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More resources:

https://connect.ndia.org/ndiadelawarevalley/home https://www.saferfederalworkforce.gov

https://governmentcontractsnavigator.com/

https://blankromeworkplace.com/

https://connect.ndia.org/ndiadelawarevalley/home

https://www.saferfederalworkforce.gov/


For more information:

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Stephanie M. HardenPartner, Government Contracts202.420.2585 | [email protected], DC

Frederick “Gus” SandstromPartner, Labor & Employment215.569.5679 | [email protected]

Brian S. GocialPartner and Member of the Board, NDIA Delaware Valley Chapter215.569.5424 | [email protected]




the federal contractor vaccine mandate: what you need to know

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