On October 28, 2021, the State of Florida filed a challenge to the Biden administration’s requirement that employees of federal government contractors be vaccinated by December 8, 2021. The complaint alleges that the federal government exceeded its authority under the Federal Property and Administrative Services Act and that the mandate “interferes with Florida’s employment policies and threatens Florida with economic harm and the loss of federal contracts.” Just one day prior, Jeff Zients, the White House Coronavirus Response Coordinator, stated that the December 8 deadline is not a “cliff” and the White House intends for there to be “flexibility within the system.” Zients said he expects federal agencies and contractors “will follow their standard HR processes and that for any of the probably relatively small percent of employees that are not in compliance they’ll go through education, counseling, accommodations and then enforcement.”
This is a departure from the Guidance issued by the Safer Federal Workforce Task Force and the deviation contract clauses issued to implement that guidance (FAR 52.223-99, DFARS 252.223-7999, etc.). Although the Guidance and deviation clauses do not require termination of unvaccinated employees, they require that all covered employees be vaccinated by December 8 unless the employees are entitled to an accommodation. Zients’ comments do little to address the concerns of contractors who have signed contract modifications incorporating the deviation clauses, and who fear that they will be in breach of their contracts if they allow unvaccinated employees without an accommodation to work on or in connection with a covered contract or at a contractor workplace location. As a result, it remains unclear how the administration’s “flexibility” will be implemented in practice and whether federal agencies will take a uniform approach in incorporating and enforcing contract terms and the associated accommodation determinations. Right now, federal government contractors should be aware that the situation may be fluid and more time for complying with these contract directives may be available. However, until further official guidance is released or agencies inform them otherwise, contractors should continue their plans to implement the Covid-19 contract requirements by the December 8 deadline.
