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Sometimes the simplest things to say are the hardest to do: go to the moon and come back, make world peace, or require everyone in your business to get vaccinated if you want to do business with the federal government. . Within weeks of an ostensible deadline, entrepreneurs are still upset by the nuances of the White House mandate. To get a taste of the adaptation, Morris, Manning & Martin partner Kelly Kroll spoke to the Federal Drive with Tom Temin.
Tom Temin: Kelly, good to see you again.
Kelly Kroll: Thank you for.
Tom Temin: And what are entrepreneurs saying on this late date? I mean, the deadline for federal employees has already passed.
Kelly Kroll: That’s right, it’s always about trying to figure that out and how to implement it. Some of my clients took the ball straight away, as early as October even before the FAR clause was incorporated into their contracts and began to operate. Others called me yesterday, “What am I doing? I just realized that this applies to me. Since September 29, I’ve probably told at least two or three customers about it every day. And what to do is they have case by case situations that arise.
Tom Temin: I think a lot of contractors are puzzled by the fact that for the employees who will be on site in a federal agency, fine, I can understand that one. But if they will never be there, why bother, Mr. and Mrs. Government? But I think what the OMB is saying is that on this side of the workforce, entrepreneurs are like every other business, part of the big push to get the nation immunized. So they kind of have you coming and going.
Kelly Kroll: Okay, I don’t think the federal government is trying to implement this from a security perspective in terms of the agencies or anything that is just part of their overall policy for the United States in his outfit. And that’s one way, obviously, to reach more people, isn’t it? We went from “Hey, we’ll give you $ 100 if you get the vaccine” or free, whatever – a sweatshirt, I don’t know what they were given out – to now you could be fired. So now we’ve gone through the whole spectrum of “rewards”, as we should say, I’m sorry I’m doing aerial quotes, but rewards if you want to call it for being vaccinated, then …
Tom Temin: Correct, because federal employees, I believe, are entitled to half a day of paid leave if they want to. But it’s not something that I think all entrepreneurs can necessarily afford to do.
Kelly Kroll: No, no, absolutely. I have clients who give people the time to do it. But not everyone. It really covers the gamut of what I see, how they implement it, and what they do. And in fact, I have a client who told me, obviously without naming names, that he was not going to sign the contract that he would let his government contract go because it is not so. important to him, because they feel they can’t get a fair share of their workforce with it. So they don’t want to be in non-compliance. So they’re just going to back down.
Tom Temin: Yes. But for those who really depend on federal labor, and for a lot of businesses locally, a lot of their business, in some cases all of their business. What should they do with the refusniks, the people who just say, sorry, I’m not going to do this?
Kelly Kroll: So you’re obviously not talking about the medical or religious accommodations that you’re talking about – I call them the “I-don’t-want”, right, that don’t have a valid exemption. So what I’m telling people right now, because it’s evolving, and because it’s changing all the time, and new FAQs are being posted every day by the Safer Workforce Task Force, or whatever the name is, this news FAQs are coming out. And so what the FAQ is saying right now, they say, “It’s up to you, entrepreneur,” they say until terminated, but they kind of imply that you have to provide advice. So we talk to these people on a case-by-case basis, bringing them in – I recommend bringing them over to HR, talking to HR, talking to them about their real concerns, why they can’t do this, help them to Provide them with information if they need it, then take it day by day until we get up until January 18th, right? So we have time here. So I’m not telling anyone to fire anyone on Christmas Eve. This is what I am doing at the moment.
Tom Temin: Do it on New Years Eve.
Kelly Kroll: New Years Eve.
Tom Temin: We speak with Kelly Kroll, she is a partner and contract lawyer at Morris, Manning & Martin. And what about religious and medical exemptions? Is there a merger, a standardized way to manage them?
Kelly Kroll: Sure. So we’re asking – and I’m working with our employment group at Morris Manning. And we prepare forms, they are not complex, they kind of inform the employee of what the policy is, in terms of having to be a certified doctor ”, letting them know that the fact that you have already had COVID is not a reason not to get vaccinated. As far as religious people are concerned, I tell people not to dive into this too much, do I? Because your religious belief is not the same as someone else’s. So we just have them fill out a form. Some people want to get notes from their spiritual leader, or someone equivalent. I don’t know if this really helps. I mean, I could say I subscribe to Tom Temin’s religions and you make me sign a note. So, I’m not sure how well a note does in this case, but I think as long as you know, I mean, most of these people know their employees. What if they know their employees aren’t just making something up, then they can sort of take it at face value?
Tom Temin: Law. If they say, well, chicken innards say no vaccine, then maybe that won’t work very well.
Kelly Kroll: And if they do with a smirk, I mean, that’s kind of how you – and they know who these people are.
Tom Temin: And what are your clients saying, in regards to their take on how this could be the first of a, I guess, the regular issuance of whatever warrant the government thinks should be on the workforce? ?
Kelly Kroll: Well this is it. Well, because in my course, I said, the guidelines are constantly changing. What the FAR clause says is that when a directive changes, you will do what the directives say. So I have a lot of deer in the headlights when I go, well, we could be in three months – now you have to make sure everyone has boosters, right? And they’re like, “Oh? They didn’t even think about it, did they. So it changes all the time. But I think your question is more about something else, isn’t it? Like, they decided that we should all wear purple raincoats. We haven’t really discussed it, to be honest with you. They are used to change, there have been a lot of changes in the regulations with the cybersecurity requirements they have had to deal with and the changes in Buy America. And there’s just been a lot of changes over the last few years that most federal contractors roll with because most of my clients are doing well, like you said earlier a fair share of their income depends on the government. . So they’re just – until it gets too crazy that they keep, I still kind of see them getting on board. So maybe we’ll all be wearing purple raincoats?
Tom Temin: Law. And you said something quickly, but I think that’s an important point. And it is that the FAR orders companies to follow the guidelines, even though there is no formal regulation behind those guidelines. So you don’t have to stand on your type of FAR religious membership and say, “Well, it’s not on the FAR, I don’t have to. The guidelines are referred to by the FAR as something you must follow.
Kelly Kroll: Law. And it’s unique, right? Usually it’s in the regulations. And sometimes they point to a different manual like cybersecurity for example NIST standard is something that can change from time to time. But it’s a daily thing, right? This new FAQ came out yesterday I think. One of my associates sent me a link that’s like, hey, there’s some new ones. I haven’t even had a chance to watch them yet. So it’s changing all the time. But the reason is a national public health problem.
Tom Temin: And to your knowledge, from your clients’ point of view, do they hear from contracting officers who are, I guess, the focal points for that mandate? Do you hear your clients overhearing contracting officers saying, “Are your parents ever vaccinated? “
Kelly Kroll: No. So they get the clause and say, sign the contract, and that’s all they want. They don’t say, “Okay, now that you’ve signed the change to make it part of your contract,” they don’t audit it. They don’t ask about it. I attended a GSA webinar a few weeks ago with senior GSA executives, where they specifically said they told their contracting officers – this was the GSA Schedule – that they had told their commanders unless there was some sort of red flag, it is not your job and your responsibility to watch this. Just make sure they sign as the mod and go.
Tom Temin: They have enough trouble keeping tabs on labor costs.
Kelly Kroll: Okay, it’s like that would be like, can you imagine? No, it’s – it’s not something that contracting officers – I haven’t heard from anyone. I’m sure there is a contracting officer who cares personally and wants to make sure, but overall? No.
Tom Temin: Alright, Kelly Kroll is a partner and contract lawyer at Morris, Manning & Martin. As always, thank you very much for joining me.
Kelly Kroll: Absolutely, my pleasure.