Unanswered vaccine mandate questions remain for contractors after FAR Council rule

Federal contractors are waiting for more clarity on how to implement vaccine mandates and the consequences of failing to do so.

This story has been updated to reflect the release of the Federal Acquisition Regulatory Council’s clause on implementation of the vaccine mandate executive order. 

President Joe Biden’s vaccine mandate for federal contractors has — much like it did for federal employees — raised more questions than answers.

Contractors first got word of the vaccine mandate in an executive order from the White House on Sept. 9, which was followed on Sept. 24 by further guidance from the Safer Federal Workforce Task Force. That guidance set the Dec. 8 deadline for covered contractors to be fully vaccinated.

Federal contractor attorneys are now hearing from their clients who are looking for clarification about how the mandate is going to be implemented and enforced.

“We’re getting just inundated with questions about what is the scope of this mandate. Who exactly does it apply to? What are the consequences of non-compliance? What’s going to happen to us if there’s somebody who’s not vaccinated that under this new mandate is supposed to be?” Jason Workmaster, a government contracts attorney with Miller & Chevalier, told Federal News Network.

The very broad executive order applies to all contracts or services, with the exception of product purchase contracts or those under the simplified acquisition threshold — but the Safer Federal Workforce Task Force has suggested extending the vaccine requirements to those contracts as well.

Workmaster said his clients had been waiting for regulatory action from the Federal Acquisition Regulation (FAR) Council, which officially puts out contract clauses.

The FAR Council, forced to work under a tight deadline, released the rule at the end of this week, essentially just telling contractors to comply with the task force.

Workmaster called the issuing of the rule “one step forward toward full clarity,” but he didn’t find it surprising, given the quick turnaround, that “it leaves lots and lots of questions unanswered … so there’s a lot still that’s going to be worked out over time that this new rule doesn’t answer.”

Unlike requirements from the Biden administration earlier this year that focused on federal government locations, the vaccine mandate extends to include contractor facilities where government contracting work is being done, and even to contract employees that are working from home.

Craig Smith, a government contract attorney at Wiley Rein, said the vaccine requirement extending to those working remotely from home will only further “complicate identifying who is subject to the requirements.”

Like federal employees, contractor employees can request exemptions on the basis of a pre-existing medical condition that affects their ability to receive a vaccine, or a sincerely held religious belief.

It is currently unclear how an employee is to go about demonstrating that they fall into either exemption, raising another challenge for the contractors who have to make the determination on if an exemption is valid.

Workmaster said he expects issues to arise “if the employee thinks they’re entitled to the exemption, and the contractor thinks they’re not — how that gets resolved — I could see there being litigation on that subject.”

Like any other new compliance obligation imposed by the government, contractors want to know what the consequences of failing to comply could be. For example, if a contractor doesn’t have all of its covered employees vaccinated, the government could argue that it is a breach of contract.

“Does that affect your past performance ratings? Does that affect, if you have a contract where the amount you get paid is tied in some way to your compliance with contract requirements, does that affect the amount that you’re going to get paid?” Workmaster said. “Could the government assert a claim for damages for failure to comply with the new mandate, or could they terminate the contract?”

Some of the mandate requirements also conflict with individual state or local laws, but Smith said “the government’s position is clear that these contractual requirements trump any contrary state/local requirements.” That could lead to its own battle if an employee argues that they want to adhere to the state or local laws they feel take precedence over what’s in the contract.

The Coalition for Government Procurement, a non-profit association of commercial contractors, submitted questions to the General Services Administration on the mandate requirements. GSA gave industry a chance to share their questions this week and is set to hold an industry engagement event on Oct. 13 to discuss implementation of the executive order.

Much is to be sorted out with the Dec. 8 deadline quickly approaching, and for now contractors can only prepare the best they can as they wait for more guidance on how to move forward.

Workmaster likened the vaccine mandate challenges to other complicated compliance obligations that contractors have faced in recent years.

“From the government contracts lawyer perspective, we’ve had over the last couple years some very challenging new types of compliance obligations for government contractors. There was the new requirement that you can’t use certain Chinese telecommunications equipment. And if you do, the government’s not going to do business with you,” Workmaster said. “This new vaccine requirement very much reminds me of that, and this is kind of a new era of much more far reaching, difficult to comply with contracts obligations. And this one is arising in the midst of an unprecedented pandemic.”

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