That vaccine mandate for federal employees and contractors working onsite at federal facilities has got feathers flying. Practical ones, legal ones, constitutional ones. No less then feds, contractor people are wondering how this will all take place. For some of what’s on industry’s mind from a legal standpoint, Federal Drive with Tom Temin turned to Holland and Knigh partner Eric Crusius.
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Tom Temin: Eric, good to have you back.
Eric Crusius: Great to be here. Thank you.
Tom Temin: All right. So what does industry view this as – a legal challenge, a logistical challenge? What’s going on?
Eric Crusius: I think they’re mostly viewing it as a logistical challenge and an employee challenge, because you have a situation where for a wide swath of contractor employees, vaccines may be mandated. And I’m not here to comment on whether the policy is the right policy, the wrong policy. But the implications are that there’ll be some employees who work for contractors who won’t want to partake in that mandate, and there’ll be some that are glad it’s there. So HR in these various companies is going to really be challenged over the next number of months to really think through what they need to do. And to be clear this mandate for contractors, it’s not specifically saying that it’s going to be a vaccine mandate, there’s going to be essentially a determination in the next few weeks. What kind of health measures need to be in place? One of those that are on the table is vaccines, and everyone is expecting that vaccines will be part of it. But technically, it’s not part of it yet.
Tom Temin: And looking across your vast list of clients, do you find that most of them have got their own corporate vaccine mandate or vaccine and be attested type of regime in place already?
Eric Crusius: Some do. And I think that whole idea is picking up steam as legal challenges to mandates have failed. And they haven’t really been successful, except for maybe an outlier here and there at all on federal court through the last 100 plus years. I think companies are getting more comfortable with the idea with mandating vaccines and other health measures along the way, so I do see more companies picking that up.
Tom Temin: So how should companies proceed? If they have this in place, or they figure, okay we’ve got staff at federal agencies, we’re going to require them to be vaccinated, there must be some verification mechanism or reporting mechanism. None of that seems to be really in place across the government or across industry yet.
Eric Crusius: Right. We’re all kind of, as they say, building the airplane as its flying. I think proof positive of that is those vaccine cards that everyone had that seemed to be pretty easy to kind of replicate and get counterfeit versions of. You’ve seen people caught with those. And I think this is kind of another example where everything is happening so quickly and events are changing so quickly in the ground, that there’s not really a thoughtful system in place where it’s one size fits all to track people’s vaccination status. I wouldn’t be surprised if there’s a central database at some point, but we’re not close to being there right now, so we’ll have to see what companies do. But I have to imagine it’s going to be up to the individual companies to kind of figure that out. And then they’re the ones who are going to have to certify when they sign their contracts that they have taken an adequate measure to look to see if the employees that need to be vaccinated or whatever the other health measures are in place, but that they are vaccinated or whatever else they promised that they’ll do.
Tom Temin: Would you then recommend to clients just make a certified, maybe a notarized list of people that are going to be on site at federal agencies, a list of those that have been vaccinated and submit that to whom the contracting officer, the general counsel of the agency, or what? I mean, there’s a way to ad hoc this in the meantime,.
Eric Crusius: Possibly. Part of it’s going to depend on what the clause looks like when it comes out and what the actual health requirements are, if they include vaccines. What I would recommend in a general sense for contractors to do is to get that verification from their individual employees, and check that off with the ones that are required to have those health measures or vaccines. And then essentially, if the list is required, and submit that list to the agency. A list may not be required, it may just be that you accept this contract, you’re certifying that you’ve done the due diligence to see that the right health measures are in place, including potentially vaccines. And that’s all, I suspect, that’s all that’s going to be required. And in that instance, it’s up to the contractor to make sure it does the due diligence that’s required to do.
Tom Temin: We’re speaking with Eric Crusius. He’s a partner at the law firm Holland and Knight. And of course, there are those that are still fairly paranoid among us, people that irradiate their grape nuts before bringing them in from the grocery store. And that gets to the idea of product vendors. And you’ve noted that the way that the executive orders and mandates are written seems to include product people who you would expect would simply ship goods into a federal agency and not be there as coworkers.
Eric Crusius: Yeah, it’s really interesting. And this may be because the executive order was probably a little bit rushed because of current events. But if you look at the excluded list of contracts, one exclusion is sub-contracts for products. So in my mind, that makes me believe, okay, that means prime contracts or products are included. But then if you look at the list of included contracts, it doesn’t specifically allow for prime contracts with products. So I think that’s one area where we just don’t have a lot of certainty, and hopefully we will soon enough because some of these product providers are fairly large companies that have to get up to speed and get ready to have a new requirement that’s fairly significant. It’s going to require a lot of interaction with their employees at various sites, potentially. So that’s one area, like you said, we’re looking at really closely, because I hate to be critical, but I just don’t think it was drafted as clearly as it could have been. And I’m sure that’s a function of how quickly it was drafted.
Tom Temin: Well probably they were envisioning services, people being on site at an agency, network operation center, or whenever they’re doing, software development. And if new cables or new monitors are needed, by a sub to one of the services firms, I guess maybe that’s what they had in mind – sounds like it.
Eric Crusius: Yeah. And I think that’s an excellent point. You think of contracts that are out there, like the NASA SEWP vehicle, where it’s primarily a products contract, but there are services that happened along with it that require folks to go on site. So I think that’s the classic example. So they didn’t want to exclude all products providers, but I think obviously have to put some more meat on these bones, or at least make the meat so you could tell what kind of meat it is – is it lamb, is it beef, is it chicken – before they move too far further forward. And hopefully, we’ll just get some maybe at least in formal guidance from the government so those companies that are kind of in that space, understand what they have to do.
Tom Temin: And I guess it’s impossible to tell, but have you seen any evidence, again, among the companies you deal with, are they putting people back on site at this point, with agencies that have people back in their facilities? It’s not a widespread thing yet, so far as we can tell.
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Eric Crusius: Yes, some have. And it kind of depends on the nature of the work that they do, if there’s a clearance necessary, and things like that, but some have, and they have varying requirements, depending on the nature of the work, and how close contact in the agency. So right now, there’s not a uniform policy in place. And that’s obviously not ideal either because different employees are going to be treated differently and will wonder why they’re being treated differently. And contractors just want to, in general with compliance, they just want to be told what to do in a clear manner, and they’re happy to do it. Maybe happy is too strong a word, but they’ll do it. And they just want to be compliant so they can continue to do business with the government and get paid and all that stuff. So what really causes heartache is when there’s confusion because there are uneven requirements, or the requirements themselves are not clear like where we are right now with this.
Tom Temin: Eric Crusius is a partner at the law firm Holland and Knight. Thanks so much.
Eric Crusius: Thank you.