The Safer Federal Workforce Taskforce Releases Guidance on Biden’s Federal Vaccine Mandates for Federal Employees and Contractors | Hodgson Russ LLP

A week after President Biden issued executive orders mandating COVID-19 vaccines for federal employees and protocols for federal contractors, the Safer Federal Workforce Task Force (“Task Force”) issued initial guidance outlining how to implement these requirements . The Task Force updated its Frequently Asked Questions (“FAQ”) page on September 16, 2021 to include new and updated information about the requirements in a question-and-answer format. The key elements of the guide are summarized below, but affected federal employees, federal contractors, and all visitors entering federal offices should know and consult the Task Force FAQ based on their circumstances. The procedures can also differ slightly from agency to agency. Federal agencies may establish different safety protocols for vaccinated versus unvaccinated individuals in recognition of their different operational requirements, conditions, and any state and local regulations or laws that may apply.

Vaccination deadlines and evidence for federal employees

Federal employees must be “fully vaccinated” by November 22, 2021. However, fully vaccinated means two weeks after a last dose of a single or double dose vaccine, which puts the deadline for vaccine administration on November 8th, 2021. Employees who do not get vaccinated on time can face disciplinary action up to and including dismissal will. Vaccination is also required for federal employees who work remotely. And all employees who start a federal employment after November 22, 2021 must be vaccinated before they start work, with the exception of “business-critical positions”, for which an agency manager can provide an exception of up to 60 days.

The only other exceptions to vaccination requirements are in circumstances where the law provides an exception, such as reasonable accommodation for people with disabilities or workers with genuine religious beliefs, practices or customs. The task force indicated that further guidance on this will be released to assist federal agencies with these issues. United States Postal Service employees could be exempted, but only in the sense that postal employees would instead be subjected to the Occupational Safety and Health Administration’s upcoming Emergency Temporary Standard (“ETS”), which applies to employers with at least 100 workers.

Federal employees must provide documents proving their vaccination status and must confirm under oath and under penalty of perjury that the information they provide is true and correct. Federal agencies are required to collect this information, provide employees with a Privacy Act statement, and comply with the Privacy Act and Rehabilitation Act of 1973 and other applicable federal laws. Agencies are permitted to develop their own processes for collecting and managing the information, but must have written instructions for their Medical Employee Record (“EMF”) system with appropriate safeguards in place.

Federal Government Visitors

Visitors to federal offices are required to complete a vaccination certificate sworn and sworn form, which requires disclosure of vaccination status and consent to comply with safety protocols, including masking, social distancing, and evidence of a negative COVID-19 test, within the last three days, if not fully vaccinated . Agencies are allowed to determine what type of test is required or acceptable in connection with the use of the form. Federal employees of one agency who enter another federal agency are considered visitors and must complete the form.

Federal contractor

Federal agencies are encouraged to include vaccination requirements in their contracts beyond those expressly covered by President Biden’s Executive Order. Before these contractual provisions come into effect, federal authorities must inquire about the vaccination status of employees from local contractors. To make this easier, the contractor’s staff on site must also fill out the vaccination certificate. However, if the contractor’s employees are regularly tested according to an official test program, they do not have to present a negative COVID test result with the certificate. In accordance with the Privacy Act and Paperwork Reduction Act, agencies will not retain vaccination certificate forms from contractors unless the agency already has a system of records in place that covers the collection of this information from contractors on site.

Take that away

While the task force’s guidelines are primarily aimed at federal employees, the task force is expected to say more about federal entrepreneurship obligations and vaccination exemptions in the coming weeks. However, the current guidance can provide valuable insight or premonition of a regulatory structure that OSHA could potentially implement for the private sector (i.e. setting vaccination deadlines, limited exemptions, requirements for proof of vaccination, visitor requirements, guidelines for contractors, etc.). Ideally, the OSHA emergency standard is published with sample plans to support affected employers in implementing the applicable requirements.