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Federal Contractors Will Have a Vaccine Mandate Similar to Federal Employees

September 13, 2021

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President Biden will sign an executive order on Thursday to require federal contractors to be vaccinated against COVID-19, alongside their federal employee colleagues.

Biden will give remarks on Thursday evening about further plans to increase vaccinations and decrease the spread of the Delta variant. This comes after the president’s July 29 announcement that onsite federal contractors, as well as federal employees, must attest to their coronavirus vaccination status or be subject to restrictions. Agencies are still in the process of implementing that directive and the contracting community still had questions about it.

During a briefing on Thursday, White House Press Secretary Jen Psaki said, “there will be limited exceptions for legally recognized reasons such as disability or religious objections.” She said she expects federal workers to have about 75 days to get completely vaccinated and they could face “progressive disciplinary action” for not getting the shot. It is not clear how, if at all, this will be different for employees versus contractors.

“Each agency is going to work with employees to make sure they understand the benefits of vaccination and how the vaccines are free, easy and widely accessible,” Psaki said. When asked how many federal workers have or have not been vaccinated, she said agencies have been keeping track through the attestation process, but did not provide a number.

Stephanie Rapp-Tully, a partner and federal employment attorney with the firm Tully Rinckey PLLC, told Government Executive on Thursday ahead of the White House briefing that the discipline process was the main thing she is looking out for. She noted federal contractors “don’t necessarily have the same administrative rights and remedies as federal employees.”

Contractors “are going to be under pressure to hold employees to this standard” because firms will be competing for agencies’ business, said Rapp-Tully. Legal challenges could be “difficult” for federal contractors, but it will also depend on the state where they are located. She said she assumed the mandate will be for onsite contractors only, but that is not explicitly clear yet. Psaki said there would be more to come on who this mandate will apply to.

“This is something we’ve predicted for quite a while,” Albert Krachman, a partner for government contracts at the law firm Blank Rome LLP, told Government Executive on Thursday. “Federal contractors are low-hanging fruit.”

He and Brooke Iley, a partner for labor and employment law 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.

Krachman said Thursday that he would like to know if there will be “any distinctions given between large employers and small businesses?” Small businesses “face increased costs and regulations for their size compared to the large entities,” he said. Also, will the mandate start to “appear in solicitations as evaluation factors or even maybe gateway issues?”

David Berteau, president and CEO of the Professional Services Council, which represents over 400 companies that contract with the federal government, told Government Executive that the association applauds the administration’s efforts to expand vaccinations.

He will be watching the announcement for the “realistic timelines” for implementation, who is and isn’t covered, and “to see if we’re really treating companies the same.”

The simplified acquisition threshold says that “anything under $250,000 as a contract is exempt from a lot of the rules, so PSC is watching to see if these types of contracts are exempt from the vaccination mandate,” said Berteau. He also asked, will those teleworking still be required to get vaccinated?

“I guess I’m expecting that the president’s announcement will unify what has been a splintered appach up to now, depending on what’s exempt,” said Berteau. “We look forward to working with the administration on clarifying the questions that get raised by the president’s announcement and the executive order.” He noted that the Biden administration has been open to input from industry groups.

The mandate has been met with some backlash.

“Last year, President Biden promised he would not implement vaccine mandates. Now, as his poll numbers nosedive after he broke his word by abandoning U.S. citizens in Afghanistan, President Biden is rushing to break yet another promise by forcing all federal workers and contractors to accept the COVID-19 vaccine with no exceptions,” said Rep. Jody Hice, R-Ga., ranking member of the House Oversight and Reform Committee’s government operations panel, said in a statement. “Vaccines (and any medical treatment) should be a decision made between patients and doctors, not the federal government.”

Already, groups of federal employees and contractors at the Veterans Affairs Department, Indian Health Service and National Institutes of Health as well as the military are required to be vaccinated. So far one of the three vaccines offered in the United States—Pfizer-BioNTech—has full approval from the Food and Drug Administration.

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