Navigating Biden’s Vaccine Mandate: Task Force Issues Guidance

President Biden recently mandated that all federal and contractor employees get immunized for COVID-19, without a testing alternative. This mandate, along with others, will face legal challenges – a September 23 lawsuit was filed on behalf of 10 federal employees in Washington, DC federal court.[1][2]

In the meantime, impacted workforces have difficult decisions to make. How do you deal with these new mandates? If you need assistance creating or responding to a vaccine policy in DC, Maryland or Virginia, or as a federal worker, contact Lipp Law today.

On September 24, the Safer Federal Workforce Task Force published guidance for the sweeping mandates and safety rules (the “Guidance”).[3] Some of the highlights from the guidance is noted below.

Federal Contractor Requirements

Our firm represents many federal government contractors. These new mandates are rolling out on a contract by contract basis. Here are the compliance details:

• New solicitations issued after Oct. 15 and new awards made after Nov. 14 will include a contract provision requiring employees working on the resulting contracts to be vaccinated by Dec. 8 or have a legal exemption, even those working remotely (though agency heads can grant a 60-day grace period for urgently needed personnel that need more time to get vaccinated).
• For existing contracts, the new contract provision will be included at the next option or extension date.
• There’s a requirement that primes flow down the vaccination clause to their subs.
• Vaccine records constitute Personal Health Information (PHI), so they must be stored in a separate employee file that may only be reviewed on a need-to-know basis.
• Vaccination status is considered confidential under the Americans with Disabilities Act (ADA) or the Rehabilitation Act if you are a federal employee, so organizations should maintain health confidentiality for staff.

[1] https://www.washingtonpost.com/local/public-safety/vaccine-mandate-lawsuit-military/2021/09/30/b774fe36-2216-11ec-8200-5e3fd4c49f5e_story.html

[2] https://www.reuters.com/world/the-great-reboot/covid-19-us-courts-challenges-vaccine-requirements-2021-09-29/

[3] https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20210922.pdf

Documenting Vaccine Status:

In terms of establishing whether an employee has been vaccinated, here is what the guidance says: “The covered contractor must review its covered employees’ documentation to prove vaccination status. Covered contractors must require covered contractor employees to show or provide their employer with one of the following documents: a copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020), a copy of medical records documenting the vaccination, a copy of immunization records from a public health or State immunization information system, or a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine. Covered contractors may allow covered contractor employees to show or provide to their employer a digital copy of such records, including, for example, a digital photograph, scanned image, or PDF of such a record.” [4]

Vaccine Exemptions:

Vaccine policies must provide for submission of medical/disability and religious exemptions. The Americans with Disabilities Act (ADA) protects employees’ confidential health information, including vaccine status and gives them rights to request reasonable accommodations to perform their essential job functions. Title VII of the Civil Rights Act of 1964 provides religious exemptions for sincerely held religious beliefs. Employers may ask for, and may want to receive from employees, documentation to support medical/disability and religious exemption requests. Each employer will have a different vaccination policy that must be examined for employee compliance.

If you need assistance with vaccination policies pertaining to your workplace, whether on the employer or employee side, contact Lipp Law today.

[4] https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20210922.pdf