OFCCP Week In Review: November 2021 #3 | DirectEmployers Association

Wednesday, November 10, 2021: Federal Contractor Guidance Updated to Include New Fully Vaccinated Deadline

The Safer Federal Workforce Task Force updated its mandatory “Guidance” for federal Government Contractors and Subcontractors pursuant to Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors). In addition, the Task Force also made available one new and two revised FAQs.

What Changed in the Guidance?

The Vaccination Deadline. Per the previous Guidance, President Biden’s initial deadline for employees of federal contractors to be fully vaccinated was December 8, 2021 as we discussed in this September 27, 2021 WIR. However, on November 8, 2021, President Biden suddenly issued a Press Release (no kidding) and set out a new January 4, 2021 mandatory vaccination deadline (i.e., the deadline to get the jab) operating across all vaccine mandates he has ordered up.  The second deadline set in that Press Release is to occur two-weeks later for federal contractor and subcontractor employees to be “fully” vaccinated (i.e., it takes 2-weeks for the vaccination to become medically effective at full strength).

Our WIR story for November 8, 2021 documented this latest change of dates in the remarkable, not only non-Legislative but also non-regulatory, journey of two of the four of these controversial vaccination mandates: The White House Issued a Press Release Relaxing the December 8, 2021 Employee Vaccination or Termination “Requirement” Applicable to Federal Contractors and Subcontractors to January 4, 2022. This pushback eased public discontent with the unpopular mandatory vaccination deadlines and made the otherwise resulting hodge-podge of vaccination deadlines uniform across all four of the vaccination mandates President Biden has ordered.

Bottom Line

The new vaccination deadline for covered contractors/subcontractors is January 4, 2022, making the “fully vaccinated” deadline January 18, 2022.

The Guidance document is also noticeably shorter than previous incarnations (nine vs. the original 14 pages) because the FAQs are no longer listed. Instead, that section provides a link to the FAQs as the Taskforce continues to frequently revise and update its FAQs. (This is one reason, for example, federal law for 75 years has required federal agencies taking actions which have a material effect on the regulated community to do so via formal Rulemaking. Just having backroom meetings to take one’s best shot at it in good faith is not proper government since the advent of FDR’s “New Deal” three-quarters of a century ago and the rise of the Executive Branch of the federal government.)

What Changed in the FAQs?

Vaccinations and Safety Protocols

New: Is there sample signage that a covered contractor can post at entrances to covered contractor workplaces providing information on safety protocols?

A: “Yes. Covered contractors should post signage at entrances to covered contractor workplaces providing information on safety protocols for fully vaccinated and not fully vaccinated individuals and instruct individuals to follow the appropriate workplace safety protocols while at the covered contractor workplace. Sample signage for areas of high or substantial levels of community transmission can be found here. Sample signage for areas of low or moderate levels of community transmission can be found here.”

Updated: Are there circumstances that the CDC recommends delaying full vaccinations for COVID-19? (revised to indicate the new “deadline” of January 18, 2022)

A: “Yes…In circumstances in which delay pursuant to these clinical considerations means that a covered contractor employee is not fully vaccinated as of the vaccination requirement implementation date of January 18, 2022, or at the time that covered contractor employees begin work on a covered contract or at a covered workplace, the covered contractor should require that individual to become fully vaccinated promptly after clinical considerations no longer recommend delay.” [emphasis added]

Workplaces

Updated: Are the workplace safety protocols set out in the Task Force Guidance for Federal Contractors and Subcontractors the same irrespective of whether the work is performed at a covered contractor workplace or at a Federal workplace? (revised to indicate the new date of January 18, 2022)

A: “Yes… Because covered contractor employees working on a covered contract need to be fully vaccinated after January 18, 2022, covered contractor employees who work only at a Federal workplace need to be fully vaccinated by that date as well, unless legally entitled to an accommodation.” [emphasis added]

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