UPDATE: The Safer Federal Workforce Task Force issued updated Guidance on November 10 confirming that the date a covered employee must be fully vaccinated is January 18, 2022.
With the addition of new answers to frequently asked questions (FAQs) on November 1, and the November 4 “Fact Sheet” issued by the White House accompanying the rollout of the Department of Labor’s Occupational Safety and Health Administration (OSHA) and Centers for Medicare & Medicaid Services (CMS) vaccination requirements for, respectively, employers with 100 or more employees and health care workers and facilities participating in Medicare and Medicaid, federal contractors have been given additional breathing room to address recalcitrant covered employees who are resisting the vaccination mandate.
Date for Covered Employees to Be Fully Vaccinated Effectively Extended to January 18
The White House issued a Fact Sheet to accompany the vaccination policies issued by OSHA and CMS in which it announced that it would align the federal contractor vaccination requirement (originally December 8) to the same vaccination deadline in the OSHA and CMS deadline—January 4. Due perhaps to an oversight, the deadlines do not actually align in the sense of the Safer Federal Task Force Guidance (Guidance), which required covered employees to be “fully vaccinated” by December 8 and defined “fully vaccinated” as beginning two weeks following the last dose. Based on the Fact Sheet, the White House’s intention is to extend the period of time to be fully vaccinated if you are a covered employee under a federal contract until January 18.
Note that until the Guidance and/or the FAQs are amended, contractors are still bound by the December 8 deadline, as the new clause requires contractors to abide by the Guidance. We have no reason to believe that they will not be amended in the near future.
New FAQs Give Flexibility to Employers to Keep Employees Who Resist Vaccination Beyond the Deadline
As noted, the Task Force issued new FAQs clarifying that the December 8 deadline (now extended to January 18) is, in the words of the White House coronavirus response coordinator, Jeffrey Zients, “not a cliff,” and federal contractors have flexibility to go beyond that deadline to review requests for medical and religious exemptions and/or otherwise persuade employees to get the shots.
Employees Who Say, “Hell, No!”
In a new FAQ, the Task Force makes clear that a contractor can use “its usual processes for enforcement of workplace policies” to address employees who refuse vaccination. The FAQ suggests as a model the policy being followed by federal agencies. Under that policy, there is a limited period of “counseling and education, followed by additional disciplinary measures if necessary.” The FAQ provides that under the federal employee policy, removal or termination only occurs “after continued noncompliance.”
The FAQ notes that employees under this policy “should not be placed on administrative leave” during the period prior to termination but must follow the safety protocols for employees who are not fully vaccinated “when reporting to agency worksites.” According to Mr. Zients, that process could take “weeks, not days,” so as to avoid unnecessary punishment of employees and disruptions in the performance of the government contracts.
Employees Who Seek Religious or Medical Exemptions
A new FAQ provides that requests for accommodation based on a religious or medical exemption do not have to be resolved when either a new or existing employee begins work on a covered contract or at a covered workplace. During the interim period, the covered employee must follow the workplace safety protocols for individuals who are not fully vaccinated as provided in the Guidance. Moreover, a separate FAQ provides that if a request for an exemption is denied by the contractor, the contractor can establish a “timeline” for the employee to promptly get vaccinated. In other words, denial of the exemption does not mean immediate termination or removal.
Using January 18, 2022, as the date for full vaccination, federal contractors should establish written policies, if they have not done so already, which:
- Identify the vaccination requirements
- Provide an opportunity for the submission of medical and religious exemptions
- Establish a process and timeline for reviewing the submission of such exemptions
- Provide a defined period of time for a covered employee to become vaccinated if the request for an exemption is denied
- Establish a process, which could span a period of weeks, through which an employee who refuses to become vaccinated can be counseled and then subject to disciplinary measures (but not termination) in order to induce the employee to become vaccinated
- During all periods when a covered employee remains unvaccinated, require the covered employee to adhere to the masking and social distancing requirements in the Guidance
Note that it is entirely up to the contractor to determine how much accommodation should be given to a recalcitrant employee before the contractor elects to terminate or reassign (if possible) the employee. The new FAQ makes clear, however, that the contractor retains flexibility to use carrot and stick approaches to induce recalcitrant employees to become fully vaccinated beyond the January 18 deadline.