UPDATE: federal courts in Kentucky and Georgia have held that the President’s executive order mandating COVID vaccines for federal contractors may not be enforced. So, for now, all this is on hold. But, just in case you’re still interested in this post - do read on!

Clients often ask me questions that go something like this: “Is it legal if I do [fill in the blank]?” Often, my answer is “well, it depends.” While clients often dislike the lack of certainty, I usually can offer up a number of factors to consider. Not so when it comes to the new vaccine mandate that will begin finding its way into federal contracts within the next few weeks. About all I can say at this point is, “mmm, maybe or maybe not.”

The mandate is being added to contracts via “class deviations” that set forth what is to my mind one of the more unusual contract clauses I’ve ever seen. The operative part of the clause reads:

(c) Compliance. 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) at https:/www.saferfederalworkforce.gov/contractors/.

See FAR 52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (OCT 2021) (Deviation). The civilian agency version of the class deviation can be found here: https://www.acquisition.gov/sites/default/files/page_file_uploads/CAAC%20Letter%202021-03%20Ensuring%20Adequate%20COVID%20Safety%20Protocols%20for%20Federal%20Contractors%20%28EO%2014042%29%2009.30.2021.pdf

In essence, the clause instructs contractors to comply with whatever guidance is published by the Task Force whenever it’s published. So far, the guidance has been updated from time-to-time; therefore, your contract requirement could be modified at any time going forward. In addition, the clause must be flowed down to subcontracts for services or construction in an amount greater than the Simplified Acquisition Threshold of $250,000.

Presently, the Task Force’s guidance states that “[c]overed contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation [by] no later than December 8, 2021.” If the December 8 deadline does not apply to your company, the deadline will be the first day of performance of any new contract, task order, contract extension, renewal or option period.

While I understand the simplicity of the concept (i.e., federal contractor employees who are covered by the mandate must be vaccinated (or have a valid excuse) by a date certain), many of our clients are struggling with (perhaps even scared of) the realities of actually fulfilling that requirement.

Some contractors are lucky enough to be located where substantial majorities of the community are fully vaccinated. They’ll have few, if any, employees who aren’t vaccinated. However, others are located in jurisdictions where the percentages are quite low. They’re concerned that significant numbers of their employees will simply refuse to get a vaccination. Period.

On one hand, the simple answer is fire ‘em and replace ‘em. But how realistic is that, actually? Probably not very. The reality more likely will be a situation in which many well-meaning contractors will do their best to obtain full compliance but simply will fall short unless they leave positions unfilled and risk the inability to perform the contract. I suppose that the simplistic response for the Government would be to terminate ‘em and replace ‘em. But, again, how realistic is that, actually? Of course, the obvious answer is not really unless the Government doesn’t mind leaving critical work unperformed.

I just attended a GSA “industry engagement” webinar. The presenters stated that the GSA acquisition workforce is being encouraged to be flexible so long as contractors sign on to the clause and are making good-faith efforts to come into compliance. Indeed, the Government is allowing itself a bit of flexibility since employees will not automatically be fired if they miss the vaccination deadline. Rather, the Task Force recommends a “progressive discipline” policy aimed at achieving compliance. Shouldn’t contractors be allowed that same flexibility? It seems that, at least for GSA, contractors will be given similar latitude so long as they are implementing the mandate in a reasonable manner.

If you’re curious, GSA’s webinar and other resources are (or will be) available at https://www.gsa.gov/governmentwide-initiatives/emergency-response/covid19-coronavirus.

For now, the Task Force’s guidance remains vague in many respects. On one hand, that allows flexibility. However, on the other hand, there’s plenty of room for inconsistent, perhaps arbitrary, decision-making. We hope greater clarity is on the way. Both contractors and procurement officials are entitled to more guidance so that the Government finds the right balance for the achievement of its objective. Mmmm, maybe is not a useful response.