Increased vaccination rates and more people returning to the workplace raise these questions.
As more Americans are getting vaccinated against COVID-19 and start to think about returning to workplaces, there is much debate over how, if at all, employers can or should require inoculations. Federal contractors are among those grappling with such questions.
While the federal government is not requiring vaccines for individuals, it has a history, dating back to the 1960s, of conditioning “contract awards on contractor compliance with emerging social policy mandates,” wrote Brooke Iley, a partner for labor and employment law at the firm Blank Rome LLP, and Albert Krachman, a partner for government contracts at the firm, in a March post. Therefore, “do not be surprised if, before the end of 2021” there is some type of requirement.
Iley and Krachman said that issuing an executive order on this would be “clearly within the administration’s wheelhouse and target zone;” however, there still could be some confusion and issues even with an order:
“Promulgation or adoption of a vaccine certification requirement would not be without controversy. The program would need to include exceptions recognized by the latest [Equal Employment Opportunity Commission] guidance for persons with disabilities, religious practices, state law conflicts, and others. Differing views on the certification may very well exist within the Office of Federal Procurement Policy, the [Federal Acquisition Regulation] Council, [Office of Management and Budget], the Department of Labor, federal employee unions, and other stakeholders. However, the Biden administration is laser-focused on corralling COVID, and given the administration’s broad controls over contracting, the federal contractor workforce could quickly become low-hanging fruit for some form of mandated vaccine requirements depending on vaccine status.”
Krachman said on Washington Technology’s podcast in April that universities and colleges requiring vaccines for students returning to campus could be a “bellwether of a probable mandate,” while noting the federal government must balance competing issues and interests.
David Berteau, president and CEO of the Professional Services Council, a trade association that represents over 400 companies that contract with the federal government, outlined several questions and considerations regarding vaccines for contractors.
“It’s essential for the successful support of government contracts by contractors that there be consistency, coherence and integration within agencies and across the federal government,” he told Government Executive.
“It can be problematic at every level,” if there is not consistency: some individuals work on more than one contract and could have different sets of guidance, companies could manage workforces on different contracts and contractors’ performance amid inconsistencies could impact agencies’ future selections for bids, said Berteau.
But he acknowledged, “This is a hard set of guidance to write” since the understanding of the pandemic is changing rapidly and, oftentimes, faster than guidance can be issued.
While the federal contracting workforce is “quite robust,” issues or restrictions with vaccines might motivate them to seek employment elsewhere, Berteau said. Another challenge will be ensuring individuals aren’t using fake vaccine credentials and navigating vaccines possibly on different authorization levels, Berteau said. “What I’m afraid [of] is that contract requirements are going to precede the resolution of the core issues that underlie a lot of these questions.”
The Labor Department’s Office of Federal Contract Compliance Programs referred to the EEOC for comment on the vaccine situation for contractors and potential complications.
For the workforce overall, Christine Samsel, shareholder at the law firm Brownstein Hyatt Farber Schreck who advises companies on labor and employment law, wrote a post in March titled, “Can Employers Mandate COVID-19 Vaccines? Likely Not (Yet), Given Current [Food and Drug Administration] Emergency Use Authorization Status.”
The EEOC released guidance about vaccines in December, in which it said, “the EEO laws do not interfere with or prevent employers from following Centers for Disease Control and Prevention or other federal, state, and local public health authorities’ guidelines and suggestions.”
This guidance “carefully sidestepped the issue of whether employers may mandate vaccines authorized under an [emergency use authorization], versus those approved pursuant to the [Food and Drug Administration’s] formal approval process,” wrote Samsel. The “language appears to provide individuals with a federal statutory right to refuse administration of vaccines authorized under an [emergency use authorization].”
At the moment all COVID vaccines are under emergency use authorization, but Pfizer-BioNTech applied for full approval earlier last week and Moderna is reportedly looking to do so as well soon.
The National Law Review noted in a post in January, “there are potential complications that employers must consider before implementing a mandatory vaccination program,” such as ensuring they consider requested exemptions from the requirement such as religious beliefs or medical conditions that would make it “dangerous or otherwise inappropriate” for employees to receive vaccines.
The CDC explicitly states on its website “the federal government does not mandate (require) vaccination for individuals,” but certain employees, such as healthcare workers, might be required to receive one “as a matter of state or other law.”
Also, creating vaccine passports or credentials is “not something that is going to be conducted, reviewed, or overseen by the federal government,” White House Press Secretary Jen Psaki during a briefing on April 21, which is what White House officials have been saying repeatedly the last few months.
“I think it’s really important that the federal government set some guidelines or best practices or criteria that those organizations that are developing the credentials can address,” such as on privacy, transparency, veracity of information and use of data, Jodi Daniel, partner in the law firm Crowell and Moring’s health care group and a member of the group’s steering committee, told Government Executive. “The government can show 'leadership' while letting the private sector develop the vaccine credential technology.”
As of Friday afternoon, 59.1% of U.S. adults had received at least one dose of vaccine and 46.1% were fully vaccinated, according to the Centers for Disease Control and Prevention’s data.