The federal contractor vaccine mandate (Executive Order 14042), which we first reported on in September both here and here, apparently will be delayed. Facing industry resistance, multiple lawsuits, and vaccination and accommodation assessment deadlines that are difficult to meet, the White House announced in an evening press call on November 3, 2021 (The White House, “Background Press Call on OSHA and CMS Rules for Vaccination in the Workplace,” https://www.whitehouse.gov/briefing-room/press-briefings/2021/11/04/background-press-call-on-osha-and-cms-rules-for-vaccination-in-the-workplace/ (published Nov. 4, 2021)), that full contractor compliance with the federal contractor vaccine mandate will be delayed until January 4, 2022, to be consistent with the OSHA vaccine ETS applicable to employers employing 100 or more employees.
According to the White House: “[W]e will be aligning the deadline for the previously announced requirement for employees of federal contractors to be fully vaccinated with these new OSHA and CMS rules.” As such, “Any employee covered by the CMS or federal contractor requirement must have their final vaccination dose by January 4th.”
The White House announcement comes only days after the Safer Federal Workforce Task Force announced some moderation on the December 8 deadline, suggesting that where “covered contractors are working in good faith and encounter challenges with compliance with COVID-19 workplace safety protocols, the agency contracting officer should work with them to address these challenges.”
Realigning the deadline for vaccination will be no small task, as previously published government directives, guidance, letters to contractors and potentially executed government contracts addressing the date for compliance are still aligned toward having employees “fully vaccinated” by December 8, 2021. Moreover, whether the White House official misspoke by saying that employees must have their “final vaccination dose by January 4th,” as opposed to being “fully vaccinated” is unclear. The new OSHA vaccine ETS, in order to avoid weekly testing for those employers that permit unvaccinated employees to choose the testing option, would require employees to be “fully vaccinated” by January 4, 2022, not receiving their final dose of the vaccine by that date.
Additionally, the OSHA vaccine ETS and the federal contractor mandate do not have the same requirements. For example, unlike the OSHA mandate, a testing option is not available to federal contractor employees (except in the case of medical or religious accommodations). Although the OSHA requirements do not apply to workplaces covered by the federal contractor mandate, employers that have multiple locations could find themselves covered by the federal contractor mandate at some locations and covered by the OSHA ETS at other locations. Likewise, there are different recordkeeping and notice requirements under each mandate. Simultaneous compliance with both sets of rules will be complex.
No doubt there will be further developments in this area. Stay tuned for the latest.
