Contractors get more COVID marching orders from the White House, but a lot remains unclear

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Contractors might be forgiven if they feel like second-class citizens, if and when everyone returns to the federal office. That’s thanks to procedures required by a White House executive order. With what to expect, Federal Drive with Tom Temin turned to attorney Amy Conway, a partner at the Stinson law firm.

Interview transcript:

Tom Temin: Ms. Conway, good to have you on.

Amy Conway: Good morning. Thank you for having me, Tom.

Tom Temin: Let’s begin with the vaccine mandate for federal employees. A bunch of paper has come out of the White House, really a stream since January, most recently last week or a couple weeks ago. And there is yet no specific vaccine mandate for contractors. Although it’s strongly hinted at. What’s your take on what they can expect on that front?

Amy Conway: Well, Tom, my initial take is that we should take the president at his word that there will be a mandate of sorts. And what we’re seeing in the actual executive orders doesn’t give us that much clarity. The last round, the executive order from September 9 that applies specifically to government contractors, talks about the Safer Federal Workforce Task Force needing to define terms and issue safety protocol by September 24. So I think we can anticipate that there will be a vaccination mandate. What percentage of contractor employees, what types of employees might be covered remains to be seen, that will be interesting in the definitions, because the executive order itself is limited in many ways in what types of contractors this might apply to.

Tom Temin: Yes, and I think some of the confusion might be that the task force the safer workforce task force. They like the word force in there.

Amy Conway: They do, it’s a lot of words.

Tom Temin: Established back in January, before the masked mandate idea probably germinated because of the Delta variant spread since then. So you’ve kind of got out of phase order making here even though one enables the other. And so right now then contractors would need to attest or be tested. Attest or test, I guess that kind of goes with safe workforce task force.

Amy Conway: Right. And that’s the on site, the people who are going on site. So the the previous order and guidance that came out of it were applicable to federal employees, and then to contractors who are going on site. So if you were a government contractor, you’re going to a government controlled work site, then you have that an attestation form that you have to fill out, which is certifying that you are vaccinated, or if you’re not, you’ve got the proof of the negative test from within three days, or you’re on the testing cycle. So that, in fact, right now is just the people going on site, the new order from last week from the 9th is, I don’t care if you’re coming on site now, there’s going to be more broadly applicable mandate.

Tom Temin: Right, because the president was going to meet with some large famous corporations to get them on board with a mandate so that a corporate type of, I don’t know whether there’s a mandate, whether the federal government can actually do that or not constitutionally, but suppose there is a general agreement, then contractors might come under that rubric, rather than something specific to federal contracting, although there’s a contract mechanism to enforce this, that is outlined in the September 9 memos.

Amy Conway: Correct. And I think you’re right, that a lot of the song and dance here is we anticipate that this type of action will be challenged, right, we’ve already seen that. And with previous executive orders, and all of that. I think part of the power here is getting certain contractors, certain companies to just say, I don’t want to deal with it, I’m gonna go ahead and implement it anyway. And that accomplishes the goal, even if ultimately it can’t be legally enforced for some of these types of businesses, because the clients I’m working with are feeling very frustrated with, I don’t know what the answers are. I’ve got employees coming at me from all sides of opinions on these issues. And in some ways, I’ve actually seen and heard from some contractors, just tell me what to do. Take it out of my hands, because I can’t keep justifying my decision to my employees. At least this gives me a I’m doing it because I have to kind of rationale, even if it’s not what I’d like to do – at least I can stop out answering that question, right.

Tom Temin: And therefore, for the larger contractors, really, they’re probably throwing this to their compliance officers.

Amy Conway: Yes. And that’s been also, as you imagine, incredibly burdensome. Like take the executive order from September 9, if it is implemented as it is written, it indicates that it only applies to people who are working on site where the government contract work is being performed. Are we going to have different rules at different facilities or for different classes of employees? Most companies, I don’t think love doing that and having people feeling like they’re being treated differently, unfairly, etc. So there’s a lot for the contracting community to think through, even if the ultimate recommendations from the task force are narrower and don’t apply to every employee of every contractor everywhere – there will still be those decisions to make. Do I want to do that? Do I need to do that anyway, for employee morale and employee relations reasons?

Tom Temin: We’re speaking with Amy Conway. She’s a partner at the Stinson law firm. And the other issue is that the executive order is calling on the FAR council to rewrite rules sometime by October. So is it your sense that if they want to get a mask or mandate or some kind of COVID protection requirement into federal contracting instruments, maybe that’s a good way for industry to make itself heard is in that rulemaking process?

Amy Conway: Yes, Tom, I would definitely encourage contractors to participate in whatever stages of the process are open. With the OSHA regs that will be coming out, that’s potentially going to be an emergency temporary standard, an ETS. There isn’t always that opportunity for comments and participation in that process. On this piece for government contractors, you have more of an opportunity, hopefully, to make your voices heard. So I would definitely encourage participation in that process.

Tom Temin: And does your sense that all of the enforcement or control mechanism will be at the contracting officer level or somewhere else in an agency?

Amy Conway: That’s a really good question, Tom. I think that remains to be seen. And perhaps some of the answer will lie in exactly how far the task force goes with some of these definitions and recommendations. Just, frankly, practically speaking, what tools do they have? What manpower do they have to enforce some of these obligations? Hopefully, we’ll know a lot more as of the 24th.

Tom Temin: And another open question, I think, too, is if you look at the broad range of issues that the task force can deal with, it’s not just masks and vaccines, but physical distancing, the density of employees in federal offices, all these other things, even how people commute, and that sort of thing. So I guess my question is, should contractors be concerned with the idea of, say, density in a given facility since many facilities have more contractors than federal employees?

Amy Conway: Correct. I don’t know that I would go so far as to be concerned. But I would definitely be proactive about reviewing what your current policies and practices are. So that if and when we get rulemaking that requires changes, we know what we’re actually doing right now. The other thing that proactively I think contractors can do right now is make sure that they do have information about their workers vaccination status. Most contractors that I’ve worked with have done this and have been doing this, but there are some that are saying hey, until I have to do it, I don’t want to know it. I think at this point, we know you’re going to have to know that information. Exactly what you’re going to do with it is a little up in the air still. But I would certainly recommend that you start gathering that data so that you will be able to use it properly, once we know what the final rule will be.

Tom Temin: And looking across the population of contractors and maybe as a subset, the clients that you have, just the ones you can see, is there a bifurcation, maybe that’s too strong a word, between a large that might be publicly traded, or the really big contractors and their policies with respect to what they’re asking their employees to do, versus small business, which may not be traded, which may have less exposure in that sense? And maybe culturally, they might have a different attitude than the big companies.

Amy Conway: I don’t think bifurcation is too strong of a word at all Tom. I think unfortunately, we’re so polarized in everything, I’m absolutely seeing that. And it’s region of the country, its employee type of role even, you know, it can vary based on a lot of things. I think, certainly, the larger contractors who have more resources, and probably a more sophisticated human resources department and maybe internal legal counsel, they’ve had policies in place for quite a while that will likely require a little bit of tweaking, but certainly, they’ve already got the systems in place and we’ll be able to implement this a little more easily. Whether they agree with it or not, they’ve got the resources to do so. But some of my clients, whether they’re smaller, or maybe they’re even large but they’re in kind of a rural setting, have been really hesitant to do some of these things, even if they want to because they can’t afford to lose employees. We all know what the labor market looks like right now. And if they tell their workforce that they have to get vaccinated, it’s a very real concern for a lot of them that they will lose a substantial number of their workers. And that’s a really big business problem. So I think I’m seeing a lot of different not only views on just do I agree with these policies, but even if I do, how do I implement them and still run my business?

Tom Temin: Well, mama said there’d be days like this. Amy Conway is a partner at the Stinson law firm. Thanks so much for joining me.

Amy Conway: Thank you. Very nice to talk with you, Tom.

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