Some states are challenging the vaccine requirements for federal contractors in court as the administration released updated guidance on how contractors handle accommodation requests and deal with compliance issues.
The Biden administration announced Thursday a common deadline for workers to be fully vaccinated — Jan. 4 — across all vaccination policies: the previously announced federal contractor vaccination requirement, the Health and Human Services requirement for vaccination of healthcare workers at all facilities participating in Medicare and Medicaid, and the Labor Department rule requiring vaccination or weekly COVID-19 testing at all companies with 100 or more employees.
The administration said it unified the deadlines out of recognition that “federal contractors may have some workplaces subject to requirements for federal contractors and other workplaces subject to the newly-released COVID-19 Vaccination and Testing ETS” from OSHA and to ensure that it’s “easier for employers to ensure their workforce is vaccinated, safe, and healthy, and ensure that federal contractors implement their requirements on the same timeline as other employers in their industries.”
“As we’ve seen with businesses – large and small – across all sectors of our economy, the overwhelming majority of Americans choose to get vaccinated,” President Biden said in a statement Thursday. “There have been no ‘mass firings’ and worker shortages because of vaccination requirements. Despite what some predicted and falsely assert, vaccination requirements have broad public support.”
The Labor Department’s Occupational Safety and Health Administration issued Thursday an emergency temporary standard requiring companies with 100 or more employees — or two-thirds of the nation’s private-sector workforce — to:
- Determine the vaccination status of each employee and get “acceptable proof” of this status, and keep records of each employee’s vaccination status
- Require employees to promptly notify employers if they test positive for COVID-19 and require employers to temporarily remove that person from the workplace, regardless of vaccination status
- Ensure each worker who is not fully vaccinated gets tested for COVID-19 at least weekly if the worker comes to the workplace at least once a week, or within 7 days before returning to work if the employee is away from the workplace for a week or longer
- Ensure that, in most circumstances, each employee who has not been fully vaccinated is masked when indoors or when occupying a vehicle with another person for work purposes
OSHA, which noted that businesses do not need to pay for COVID testing or for masks, released a webinar, frequently asked questions and other compliance materials to help guide businesses through the transition. OSHA posted the ETS in the Federal Register with a Dec. 6 deadline for comments.
As of Saturday, 26 states had joined four lawsuits filed in four appellate courts seeking to stop the federal requirement that companies require COVID-19 vaccines for employees or weekly testing, claiming that the government doesn’t have the authority for the sweeping mandate. A lawsuit filed by Missouri and 10 other states claims that the requirements will “cause injuries and hardship to working families, inflict economic disruption and staffing shortages on the states and private employers, and impose even greater strains on struggling labor markets and supply chains.”
Attorneys general in Louisiana, Mississippi, and Indiana joined together in a lawsuit filed Thursday to challenge the vaccine requirement for federal contractors, claiming that the administration “failed to even try to connect its mandate with any statutory language that might authorize taking the action,” according to an announcement from the office of Mississippi Attorney General Lynn Fitch, and “violates the Nondelegation Doctrine by taking actions not authorized by Congress” as well as the Tenth Amendment and Spending Clause “by asking contractors, including many State agencies, to comply with highly ambiguous guidance applying to contractual relationships already in place.” The states are also arguing that the contractor mandate should have been posted in the Federal Register and undergone a period of comment and rulemaking.
“President Biden has vastly overreached his authority, putting the jobs of one-fifth of the American workforce in jeopardy and violating vital principles, including state sovereignty, the rule of law, and religious liberty,” Fitch said.
With the implementation date looming, recently updated guidance for contractors posted on SaferFederalWorkforce.gov says that:
- Contractors do not need to require employees to show or provide documentation if they can access vaccination documentation directly, consistent with privacy laws
- Contractors may still be reviewing accommodation requests at the time that covered contractor employees begin work on a covered contract or at a covered workplace
- The federal agency using the contractor’s services will determine the workplace safety protocols that individuals who are not fully vaccinated and/or have been provided an accommodation by the contractor must follow while in a federal workplace (which could include the employee not being able to work at the workplace if safety standards cannot be met)
- An employee of a corporate affiliate of a covered contractor is considered a covered contractor employee if the employee performs work at a covered contractor workplace, and if any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract at a workplace controlled by a corporate affiliate of that covered contractor, that workplace is considered a covered contractor workplace
- The agency contracting officer should work with the contractor to address COVID-19 compliance challenges, but if a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken
The guidance also addresses what steps a contractor should take if an employee refuses to get vaccinated and has not been granted nor asked for an accommodation, noting that while contractors will have their own policies regarding “the appropriate means of enforcement” they can also follow the non-compliance model being utilized by federal agencies: “a limited period of counseling and education, followed by additional disciplinary measures if necessary,” and “removal occurs only after continued noncompliance.”
“During the time period of enforcement, the covered contractor must ensure the covered contractor employee at a covered contractor workplace is following all workplace safety protocols for individuals who are not fully vaccinated,” the guidance states. “An agency may determine that a covered contractor employee who refuses to be vaccinated in accordance with a contractual requirement pursuant to EO 14042 will be denied entry to a Federal workplace, consistent with the agency’s workplace safety protocols.”
“What we want to do is get as many people vaccinated, and people that choose not to get vaccinated, making sure we know that people are safe and not bringing the coronavirus into the workplace,” Labor Secretary Marty Walsh told CNN on Thursday.