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Biden: Onsite Contractors Must Attest to Vaccine Status or Be Subject to Restrictions

August 2, 2021

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President Biden announced on Thursday that onsite federal contractors, as well as federal employees, must attest to their coronavirus vaccination status or be subject to restrictions.

The spread of the Delta variant and breakthrough infections have threatened the country’s return to normal, including returning to worksites, and the federal public health agencies issued new mask guidance for vaccinated individuals on Tuesday for areas with high and substantial disease transmission as well as schools. Biden, taking shouted questions from the White House press corps on Tuesday afternoon, said a vaccine mandate for the federal workforce was under consideration. This announcement also wound up including contractors; Government Executive explored the prospect of such a directive in May.

Biden announced that all federal employees and onsite contractors will be asked to attest to their vaccine status and if they do not attest to being fully vaccinated then they will have to wear a mask, regardless of their location; social distance from others with at work; comply with weekly or twice weekly coronavirus testing; and be limited on official travel.

“These rules should not only apply to federal workers and onsite contractors,” said a fact sheet from the White House, outlining a slew of actions it’s taking to boost vaccinations. “President Biden is directing his team to take steps to apply similar standards to all federal contractors.” The White House hopes the private sector follows its lead.

The administration’s Safer Federal Workforce Task Force released new workplace safety guidance on Thursday that includes the attestation process and covers contractors as well as employees.

While giving remarks late Thursday afternoon, Biden said that vaccines are the “very best defense” against the coronavirus. He acknowledged that there are breakthrough cases, but the effects of the virus are much worse on those who are not vaccinated. As of Thursday afternoon, 69.4% of U.S. adults have received at least one vaccine dose and 60.3% are fully vaccinated, according to the Centers for Disease Control and Prevention’s data.

​​“If you want to do business with the federal government, get your workers vaccinated,” said Biden, although there is an alternative option.

A mandate “has to include contractors,” David Berteau, president and CEO of the Professional Services Council, a trade association that represents over 400 companies that contract with the federal government, told Government Executive ahead of the announcement. “There’s no way that you can have this work as any health or safety set of actions if it didn’t include all the workers who come into a facility. It would make no sense for it to cover only a subset of the workforce and not the full workforce, there’s no health reason, and there’s no safety reason that that would make any sense.” (The White House’s release did not refer to this as a mandate.)

Some of the questions Berteau had were how agencies will confirm vaccination status and who will pay for the testing. He said he also wondered how management of the workforces will work and if that could affect recruitment, retention and promotions at all. He also noted that “one of the big values of contractors is the ability to move workers to where the skills were needed and the workers needed,” a flexibility that the “federal civilian workforce doesn’t provide you.”

The new guidance says “agencies must establish a program to test federal employees and contractors working onsite who are not fully vaccinated, or who decline to provide information about their vaccination status, for COVID-19 weekly or twice-weekly.”

Earlier this week, the Justice Department made public an opinion from the Office of Legal Counsel that says public and private entities may require vaccinations, even if the vaccines have emergency use authorization from the Food and Drug Administration only.

“I thought it was a very convincing argument that very adequately laid out that there are no reasons why companies cannot impose a vaccine requirement, no legal reasons, under that act,” Berteau said.

The situation for federal contractors is “very different” than it is for federal employees, Stephanie Rapp-Tully, a partner and federal employment attorney with the firm Tully Rinckey PLLC, told Government Executive before the announcement, when it was not clear yet what the scale and scope of the directive would be. “There’s hundreds of different contractors throughout their federal government, so one size shoe does not fit all.”

After the announcement, she said the attestation situation (in which there is an option for testing and masking) does “soften” some of the issues many were thinking about with a possible vaccine mandate. She also noted the testing process could get “complicated.”

Michael Macomber, another partner in Tully Rinckey’s Federal Employment Law practice group, said in a press release after the announcement that while Biden sent a “clear message” about vaccinations, there is still “a certain percentage of those workers who will not get the vaccine.”

Brooke Iley, a partner for labor and employment law at the firm Blank Rome LLP, and Albert Krachman, a partner for government contracts at the firm, wrote in a March post that the federal government has a history, dating back to the 1960s, of conditioning “contract awards on contractor compliance with emerging social policy mandates.” Therefore, “do not be surprised if, before the end of 2021” there is some type of requirement, they said.

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