Myth Buster: There is no general test alternative for federal contractor’s vaccine mandate | Verrille

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This is the first in a series of messages from Verrill intended to help dispel the myths currently circulating regarding labor laws and regulations related to COVID-19.

On September 24, the Federal Workforce Security Task Force released a draft Guidelines for Federal Contractors titled COVID-19 Workplace Safety: Guidelines for Federal Contractors and Subcontractors. A copy of the Guide is available here. On September 30, 2021, the GSA Office of Governmentwide Policy released CAAC 2021-03 Memorandum for Civilian Agencies with the subject: Class deviation from federal procurement regulations regarding the implementation of Executive Order 14042, ensuring adequate COVID security protocols for federal contractors. A copy of this document is available here. These two documents provide the main sources of information regarding the obligations of federal contractors with regard to the vaccination mandate.

A myth we hear repeated from several friends and clients is that the tenure isn’t really a tenure, as employees can opt for weekly testing rather than getting the COVID-19 vaccine. This claim is incorrect, however. Below are answers to the most common questions we have received regarding the Federal Workforce Security Task Force guidelines:

What are the obligations of entrepreneurs?

  • COVID-19 vaccination of employees of covered contractors, except in limited circumstances where an employee is legally entitled to housing;
  • Compliance by individuals, including employees and visitors of Covered Subcontractors, with the Masking and Physical Distancing Guidelines in the Workplaces of Covered Subcontractors; and
  • Designation by Covered Contractors of a person or persons to coordinate COVID-19 workplace safety efforts at the workplaces of Covered Contractors.

When should employees be fully immunized?

  • December 8, 2021. Full vaccination is defined as two weeks after an employee receives the second dose of a two-dose series, or two weeks after receiving a single dose vaccine. There is currently no post-vaccination time limit for fully immunized status; if such a limit is determined by the Centers for Disease Control and Prevention, that limit will be reviewed by the working group and the OMB for a possible update of this guide.

Do these obligations only apply to employees working under federal contracts?

  • No. These obligations apply to all employees. Guidance provides, “Subcontractor employee covered means any full-time or part-time employee of a Covered Contractor working on or in connection with a Covered Contract or working at a Covered Contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.

If an employee refuses vaccination due to a health problem or religious beliefs, can they remain unvaccinated on the job site?

  • Yes. These would be situations in which an employee would be legally entitled to an accommodation.

As an alternative to vaccination, can employees be tested for COVID-19 weekly?

  • No. If an employee is not legally entitled to an accommodation (due to a health problem, sincere religious belief, or other legally permitted accommodation), they will not be able to obtain a weekly test as an alternative to the vaccination.

What clause can prime contractors expect to see in government procurement under OE 14042?

  • The Contractor must adhere to all guidelines, including Frequently Asked Questions, as amended during the performance of this contract, for the Contractor’s or Subcontractor’s workplaces published by the Contractor. Safer Federal Workforce Task Force (Task Force Guidance) at https: / www. saferfederalworkforce.gov/contractors/.

What are the obligations of a project manager?

  • Prime contractors are required to include the substance of the above clause in subcontracts at any level which exceed the simplified acquisition threshold on the date of the award of the subcontract and relate to services, including construction carried out in whole or in part in the United States or its periphery. areas.

What is the simplified acquisition threshold?

  • Simplified acquisition threshold is defined in Federal Acquisitions Regulation 2.101 and means $ 250,000, except for—

(1) Acquisitions of supplies or services which, as determined by the head of the agency, are to be used to support an emergency operation; to facilitate defense or recovery after a cyber, nuclear, biological, chemical or radiological attack; support a request by the Secretary of State or the Administrator of the United States Agency for International Development to facilitate the provision of International Disaster Assistance in accordance with 22 USC 2292 et seq .; or to support the response to an emergency or major disaster (42 USC 5122), (41 USC 1903), the term means – (i) $ 800,000 for any contract to be awarded and performed, or purchase to be made, to the interior of the United States; and (ii) $ 1.5 million for any contract to be awarded and performed, or purchase to be made, outside the United States; and

(2) Acquisitions of supplies or services which, as determined by the head of the agency, are to be used in support of a humanitarian or peacekeeping operation (10 USC 2302), the term means $ 500,000 for any contract to be awarded and performed, or purchase to be made, outside the United States.

Which contracts will include the requirements?

  • All new service contracts awarded on or after November 14, 2021, from calls for tenders issued before October 15, 2021;
  • New orders after November 14, 2021 under open-ended service contracts;
  • All new solicitations for services issued as of October 15, 2021 (regardless of the grant date);
  • Extensions of existing service contracts after October 15;
  • Renewals of existing service contracts after October 15; and
  • Options exercised on any existing service contract when the option is exercised as of October 15.

What other contracts may include the requirements?

  • Contracts or sub-contracts for the manufacture of goods;
  • Contracts or sub-contracts that are under the Simplified Acquisition Threshold;
  • Contracts awarded before November 14, regardless of the date of the call for tenders; and
  • Contracts which are not covered by the decree because it is below the threshold of the simplified acquisition threshold.

Which contracts CANNOT include the requirements?

  • Contracts and sub-contracts with indigenous tribes under the Indian Self-Determination and Educational Aid Act; and
  • Solicitations and contracts if the execution is outside the United States or its peripheral regions.

What if we choose not to comply?

  • If you have already entered into the Agreement, your business would likely be in breach of contract.
  • If an employee or third party reports that you do not follow the stated rules, but receive payments for the project / service, you could be held liable under the False Claims Act (FCA). The False Claims Act provides a means of whistleblowing to reduce fraud against the government. There are two liability provisions: 1) The false claims provision creates liability for knowingly making or causing to be made a false or fraudulent claim for payment; and 2) The misrepresentation provision, which creates liability or involves knowingly making, using or causing to be produced or used a false record or document for a false or fraudulent claim. If it were determined that compliance with EO14042 was an important condition of the contract, not knowingly having a workforce vaccinated would likely violate the misrepresentation provision. Damages in an FCA case include: Compulsory triple damages; Mandatory civil penalties of up to $ 23,331 per false declaration; Strong incentives for whistleblowers (A whistleblower filing a complaint on behalf of the government can receive up to 30% of the clawback).

This information is current as of October 8, 2021.


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