What Does the Partial Blocking of the Contractor Vaccine Mandate Mean?
Overall, this has been a “very, very complicated area,” said one contracting expert.
The recent temporary blocking of the COVID-19 vaccine mandate for federal contractors in three states adds to an already complicated situation, said a major trade association.
On November 30, a federal judge issued a preliminary injunction for the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio and Tennessee. Following President Biden’s issuance of the executive order on the mandate on September 9, there have been numerous legal challenges.
The interpretation of the ruling by the Professional Services Council––a trade association that represents over 400 companies that contract with the federal government––is that “if you have what would normally be considered covered contractor employees—so ones who would be subject to the vaccine mandate from the Safer Federal Workforce Task Force guidance—those individuals are doing work in those three states Kentucky, Ohio and Tennessee, there is a preliminary injunction and they are preliminarily, at least, no longer required to be fully vaccinated by Jan. 18,” Stephanie Kostro, executive vice president for policy at PSC, told Government Executive. “But if you’ve got workers in other states, say Indiana, Pennsylvania, elsewhere, those folks are still covered by the mandate as long as it's in your contract.”
The industry association has been closely monitoring the implementation of the vaccine mandate and calling attention to the various challenges as the administration’s guidance and legal situation evolves. Overall, this has been a “very, very complicated area and there have been challenges highlighted by PSC and other entities...in having different rules for different elements of your workforce,” Kostro said. “The preliminary injunction just highlights one aspect of it.”
Another challenging aspect is that “if you’re a company that has two different kinds of employees, those who work on products and those who work on services, you already have different policies” because the executive order requires vaccinations for services and strongly recommends, but does not require it, for the products, she said.
Different agencies, such as the Defense Department and the General Services Administration, have taken different approaches to handling product contracts, she noted. Therefore, for companies “across the board, it really complicates human resources and really facilities’ access policies as well,” she said. Complying with the vaccine mandate and the costs associated with it, will force companies, specifically the small ones, to make some “hard choices about whether you want to have the government as a customer going forward.”
One of the contractor association’s suggestions to reduce confusion and complication has been to have a testing opt-out from the vaccine mandate, like the Occupational Safety and Health Administration rule for private business does, as Defense One reported last month. This rule is currently paused due to ongoing litigation.
Despite the challenges, there has been “some calendar relief” by the Biden administration pushing back the compliance date from December to January, Kostro said.
Also, updated guidance the task force released last month says there can be “limited exceptions” in which agencies approve extensions to the deadline in order to meet “urgent mission crucial need(s).”
Going back to the injunction, Cheryl Behymer, partner at the law firm Fisher Phillips, and Hannah Sweiss, an associate at the firm, wrote in a post on December 3 that the court order does not prevent contractors from implementing their own mandates. “However, given the uptick in state law restrictions, you must remain cognizant of state laws that may limit your ability to implement a vaccine mandate,” they wrote. “For example, in Tennessee there are currently restrictions on vaccine mandates.”
Under a law enacted on November 12, “employers are not allowed to require employees to show proof of vaccination status or take any adverse action against an employee if the employee does not comply with the company’s vaccination policy,” Laura Mitchell, principal at the law firm Jackson Lewis, told Government Executive.
The law “has an exception, however, for companies that receive federal funds, and therefore are obligated to seek proof of vaccination status or otherwise require vaccines to comply with vaccination requirements for federal contractors as set forth in [the] executive order,” she continued. Due to the injunction “there is, at least for the time being, no vaccination requirement in [Tennessee] for federal contractors. Therefore, [Tennessee] employers cannot rely on compliance with [Executive Order] 14042 as the basis (or justification) for requiring proof of vaccination and/or vaccines for [their] employees.”