New FAQs expand scope of contractor vaccine mandate

Affiliated entities may now be covered. 

The Safer Federal Workplace Task Force issued additional FAQs yesterday regarding the vaccine mandate for federal contractors. Two of these new FAQs have the potential to significantly expand the reach of who must be vaccinated. 

The Task Force’s original Guidance provides that two groups of individuals must be vaccinated:

  • Employees of a covered contractor working on or in connection with a covered contract.
  • Employees of a covered contractor working at a covered contractor workplace (which is defined as a location controlled by a covered contractor at which an employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract.)

“Covered contractor” is defined as a contractor “at any tier who is a party to a covered contract.” Thus, a reasonable interpretation of the Guidance is that employees of an entity affiliated with a covered contractor -- that did not itself have federal contracts -- would not be subsumed into the vaccine mandate because they were not “employed by” a covered contractor. (For our discussion of the original Guidance, see our prior bulletin.)

The FAQs now offer additional definitions and clarify that even employees of non-contractors may in fact be covered. The two new directives are:

  • An employee of a corporate affiliate of a covered contractor is considered a covered contractor employee if the employee performs work at a covered contractor workplace.
  • If any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract at a workplace controlled by a corporate affiliate of that covered contractor, that workplace is considered a covered contractor workplace.

“Business concerns, organizations, or individuals” are considered affiliates if:

  • One, directly or indirectly, controls or has the power to control the other; or
  • A third party, directly or indirectly, controls or has the power to control both entities.

Indicia of control include, but are not limited to:

  • Interlocking management or ownership.
  • Identity of interests among family members.
  • Shared facilities and equipment.
  • Common use of employees.

Thus, covered contractors and their related entities must also now consider whether employees of those affiliated entities must be vaccinated by virtue of working at locations where covered contractor employees are present.

The Task Force also offers guidance for handling employees who refuse to be vaccinated. Contractors should follow their normal disciplinary processes for enforcing workplace policies, including procedures in handbooks and collective bargaining agreements. The enforcement model used by federal agencies is presented as appropriate for contractors, and this includes “a limited period of counseling and education, followed by additional disciplinary measures.” Continued non-compliance can result in the employee’s removal from the workplace. This suggests that immediate termination is not mandatory and that contractors may progressively discipline employees who refuse to be vaccinated with discharge being the culminating step. During that process, those individuals must follow all safety protocols required of unvaccinated employees. 

Regarding enforcement of the vaccine mandate, the Task Force notes that federal agencies should work with covered contractors that are “working in good faith and encounter challenges.” However, contractors that do not take steps to comply may face “significant actions,” including termination of the contract. This provides some reassurance that contractors working diligently to implement reasonable compliance measures will not be sanctioned for minor missteps or mis-interpretations of vague requirements by the government.

We will continue to provide updates as additional guidance is issued by the Task Force. 

Our Affirmative Action Alert blog focuses on the latest news and topics affecting federal contractors and subcontractors and their compliance with affirmative action and other employment-related laws and regulations.  With breaking news, quick updates, and headlines on the Office of Federal Contract Compliance Programs and affirmative action issues, this blog is a great resource for in-house counsel, HR managers, and other compliance professionals.  Our blog is a companion to Constangy’s Affirmative Action newsletters, which address significant legislative, regulatory, and administrative proposals and changes.  Subscribe to both to stay current on these important topics!


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