Myth Buster: There is Not a General Testing Alternative for Federal Contractor Vaccine Mandate

This is the first in a series of posts from Verrill with the purpose of helping to dispel myths that are currently circulating concerning employment laws and rules related to COVID-19.

On September 24, the Safer Federal Workforce Task Force issued draft Guidance for Federal Contractors entitled COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. On September 30, 2021, the GSA Office of Governmentwide Policy issued CAAC 2021-03 Memorandum for Civilian Agencies with the subject: Class Deviation from the Federal Acquisition Regulation Regarding Implementation of Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. A copy of that document is available here. These two documents provide the main sources of information concerning federal contractor obligations as they relate to the vaccine mandate.

One myth we are hearing repeated by several friends and clients is that the mandate is not truly a mandate, because employees can opt for weekly testing rather than obtaining the COVID-19 vaccine. This statement, however, is incorrect. Below are answers to the most common questions we have received concerning the Safer Federal Workforce Task Force Guidance:

What Are the Obligations for Contractors?

• COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;
• Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces; and
• Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

When Must Employees Be Fully Vaccinated?

• December 8, 2021. Fully vaccinated is defined as being two weeks after the employee has received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine. There is currently no post-vaccination time limit on fully vaccinated status; should such a limit be determined by the Centers for Disease Control and Prevention, that limit will be considered by the Task Force and OMB for possible updating of this Guidance.

Do These Obligations Apply Only to Employees Working on Federal Contract Jobs?

• No. These obligations apply to all employees. The guidance provides, “Covered contractor employee- means any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.”

If an Employee is Refusing Vaccination Because of a Health Condition or Religious Belief, Can They Remain Unvaccinated on the Worksite?

• Yes. These would be situations in which an employee would be legally entitled to an accommodation.

As an Alternative to Vaccination, Can Employees Be Tested for COVID-19 Weekly?

• No. If an employee is not legally entitled to an accommodation (because of a medical condition, a sincerely held religious belief, or other legally entitled accommodation) they would not be able to obtain a weekly test as an alternative to vaccination.

What Clause Can Prime Contractors Expect to See in Government Contracts Under EO 14042?

• The contractor shall comply with all guidance, including guidance conveyed through Frequently Asked Questions, as amended during the performance of this contract, for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance).

What Obligations Does a Prime Contractor Have?

• Prime Contractors are required to include the substance of the above clause in subcontracts at any tier that exceeds the simplified acquisition threshold on the date of the subcontract award and are for services, including construction performed in whole or in part within the United States or its outlying areas.

What is the Simplified Acquisition Threshold?

• Simplified Acquisition Threshold is defined in Federal Acquisition Regulation 2.101 and means $250,000, except for—

(1) Acquisitions of supplies or services that, as determined by the head of the agency, are to be used to support a contingency operation; to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; to support a request from the Secretary of State or the Administrator of the United States Agency for International Development to facilitate provision of international disaster assistance pursuant to 22 U.S.C. 2292 et seq.; or to support response to an emergency or major disaster (42 U.S.C. 5122), (41 U.S.C. 1903), the term means– (i) $800,000 for any contract to be awarded and performed, or purchase to be made, inside the United States; and (ii) $1.5 million for any contract to be awarded and performed, or purchase to be made, outside the United States; and

(2) Acquisitions of supplies or services that, as determined by the head of the agency, are to be used to support a humanitarian or peacekeeping operation (10 U.S.C. 2302), the term means $500,000 for any contract to be awarded and performed, or purchase to be made, outside the United States.

What Contracts Will Include the Requirements?

• All new contracts for services awarded on or after November 14, 2021, from solicitations issued before October 15, 2021;
• New orders after November 14, 2021 under indefinite-delivery service contracts;
• All new solicitations for services issued on or after October 15, 2021 (without regard to award date);
• Extensions of existing service contracts after October 15;
• Renewals of existing service contracts after October 15; and
• Options exercised on any existing service contract when the option is exercised on or after October 15.

What Other Contracts May Include the Requirements?

• Contracts or subcontracts for the manufacturing of products;
• Contracts or subcontracts that are under the Simplified Acquisition Threshold;
• Contracts awarded prior to November 14 without regard to when solicitation occurred; and
• Contracts that are not covered by the order because it is under the threshold of the simplified acquisition threshold.

What Contracts CANNOT Include the Requirements?

• Contracts and subcontracts with Indigenous tribes under the Indian Self-Determination and Education Assistance Act; and
• Solicitations and contracts if performance is outside the United States or its outlying areas.

What If We Choose Not to Comply?

• If you’ve already entered into the Agreement your company would likely be in breach of contract.
• If an employee or third-party reports that you are not in compliance with the rules set forth, but are in receipt of payments for the project/service, you could be liable under the False Claims Act (FCA). The False Claims Act provides a whistleblower avenue to decrease fraud on the government. There are two liability provisions: 1) The False Claims Provision creates liability for knowingly presenting or causing to be presented a false or fraudulent claim for payment; and 2) The False Statement Provision, which creates liability or involves knowingly making, using, or causing to be made or used a false record or statement material to a false or fraudulent claim. If there was a determination that compliance with EO14042 was a material term to the contract, knowingly not having a vaccinated workforce, would likely violate the False Statement Provision. Damages in a FCA matter include: Mandatory treble damages; Mandatory civil penalties of up to $23,331 per false claim; Strong whistleblower incentives (A whistleblower bringing a suit on behalf of the government can receive up to 30% of the recovery).

This information is current as of October 8, 2021. For more information on your obligations under EO 14042, please contact Tawny Alvarez or another member of Verrill’s Employment and Labor Practice Group.