White House Fact Sheet Results in Additional Questions for Government Contractors

By Susan Warshaw Ebner, Eric Whytsell and Luke VanFleteren

On November 4, 2021, the White House released a fact sheet on the issuance of new OSHA ETS and CMS Rules and also addressed some changes to the previously announced EO 14042 federal contractor vaccination mandate. During last week's White House press briefing, officials had suggested that the administration might at least delay implementation of the EO 14042 for federal contractor employees.

Today’s new White House fact sheet appears to follow up on that promise, although there are significant questions about the EO 14042 rollout that remain unanswered. The fact sheet describes the administration’s plans to extend the deadline for government contractor compliance by requiring that contractor and subcontractor employees under covered government contracts must have their final vaccination dose by January 4, 2022. The White House explained this revised deadline for the vaccination requirement is intended to set a uniform date for final vaccination dose requirements for federal contractor employees as well as employees falling under the OSHA ETS and CMS rules.

This fact sheet appears to soften the deadline for federal contractor employees by extending the deadline for full compliance with Safer Workforce Task Force (SWTS) guidance from the original deadline of December 8, 2021. But given the number of unresolved issues, federal contractors should avoid irrational exuberance regarding what this means for their compliance efforts.

Considerations Going Forward

  • While the White House made its announcement regarding the extension of the federal contractor vaccination deadline by fact sheet, it remains to be seen how this will be implemented. The SWTF guidance has not yet been amended to reflect the new date for covered contractor employees to receive their last vaccination, January 4, 2022, and it does not state when a contractor employee will now be considered fully vaccinated. Will it be two weeks after the last vaccination—January 18—or some other date?
  • It also remains to be seen whether and how federal agencies will alter their previously established timelines for execution and submission of bilateral contract modifications and other administrative matters. Some agencies may decide to leave the current timelines for compliance in place, which could create confusion. Of course, any changes to existing timelines and procedures to reconcile with the new OSHA ETS and CMS rule timelines may cause confusion as well.
  • The White House fact sheet states that the new OSHA ETS and CMS Rules will not apply to “workplaces covered by … the federal contractor vaccination requirement.” This statement creates confusion regarding whether the OSHA ETS rule will apply to federal contractor workplaces that are not covered by the SWTF guidance.
  • Further, the SWTF guidance requires masking and physical distancing for unvaccinated employees being processed for or determined to be eligible for accommodation pursuant to a legal exception for disability or a sincerely held religious belief. In contrast, the White House fact sheet describes the new OSHA ETS rule as requiring unvaccinated workers to wear face masks in the workplace; it does not identify any social distancing requirement. Does this mean that social distancing is not a necessary element of the rule for covered contractor employees that are not yet fully vaccinated or that are covered by an accommodation arising from a legal exception? Moreover, the SWTF guidance will control over a contractor’s covered employees, but will the contractor now need to apply the OSHA ETS rule to those employees that may be segregable and not subject to the vaccination mandate? What about visitors? What rule will apply, to whom, and when?
  • The fact sheet and SWTF guidance also leave unanswered which federal contracts are covered by the EO14042 vaccination requirement. The EO 14042 identified only contracts and subcontracts above the simplified acquisition threshold, $250,000 (SAT). Agency FAR class deviations to implement this requirement and the Civilian Agency Acquisition Council guidance both advise that agencies seek implementation of the requirement under contracts below the SAT and also beyond the services, leasing and construction expressly identified for coverage under EO 14042. None of the guidance explains how the value of a contract is to be calculated to determine whether it exceeds the triggering threshold, nor does it explain whether contractors can push back on clauses that are inserted in contracts below the SAT or contracts that are not identified for “mandatory” coverage under the EO 14042. The hammer for implementation—whether that be non-issuance of contracts, options, extensions, etc.—is significant, and obtaining answers to these questions as the deadlines loom adds a sense of urgency.

For information regarding the Centers for Medicare and Medicaid Services Interim Final Rule released on November 4, 2021, see here, and for information regarding the OSHA ETS announced on November 4, 2021, see here.

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