Vaccine Mandates and Small Business Contractors

As I’ve thought about the new COVID-19 vaccine mandate for federal contractors, and as I’ve discussed it with clients, it seems to me that the new requirements will be hard on small business federal contractors–even if it is a good step towards mitigating the pandemic.

In this post, I wanted to discuss a few of the concerns I have with the forthcoming vaccine mandate.

Let me start this post by getting a few things out of the way:

• Though this post discusses concerns with the vaccine mandate as it’s set forth in the protocol, I feel compelled to say that I’m unabashedly pro-vaccine. Heck, I’d probably get the booster shot twice if I could. And I encourage everyone else who is healthy enough to get the vaccine to do so, too.
• This post isn’t meant to debate the merits or safety of the COVID-19 vaccine; rather, it focuses on the aspects of the mandate that, I think, may be problematic for small businesses.
• None of these concerns apply to the masking and social distancing requirements under the new workplace protocol. In my mind, these requirements are easy to comply with and reflect but the slightest of inconveniences to how one might normally go about their day.

With that, let’s get to the three biggest concerns I have with the vaccine mandate’s impacts on small business federal contractors.

First, the mandate is vague. There is no discussion, for example, of penalties for a contractor’s noncompliance. Because the Guidance will soon be a FAR provision, and because this provision will be made part of contracts, one assumes that termination for default might result. But does the government really want to impose this penalty on a small business? None of this is defined, and leaves contractors guessing as to how to best comply.

Second, the vaccine mandate places business owners in the uncomfortable (and unenviable) position of weighing employees’ requests for accommodations, either due to a medical condition/disability or a sincerely held religious belief. The response to Question 4 states, in part:

A covered contractor should review and consider what, if any, accommodation it must offer. The contractor is responsible for considering, and dispositioning, such requests for accommodations regardless of the covered contractor employee’s place of performance.

If I’m a small business employer, this provision doesn’t give me much comfort. What information do I need to appropriately disposition a request for vaccine accommodation, and how deep must my review be? Must I ask, for example, questions about the specific disability or the sincerity of the beliefs at issue? More importantly, what liability do I face under my contract for granting an accommodation request the government disagrees with?

None of these questions are answered. Of course, small businesses should speak with employment counsel about what they can–and cannot–ask when considering an employee’s request for a vaccine accommodation.

Third, the mandate’s overbreadth takes away the most obvious recourse for a small business owner: allowing unvaccinated individuals to work remotely.

As I mentioned in yesterday’s post, the vaccine mandate applies even to covered contractor employees who work from home:

Q11: How does this Guidance apply to covered contractor employees who are authorized under the covered contract to perform work remotely from their residence?

A: An individual working on a covered contract from their residence is a covered contractor employee, and must comply with the vaccination requirement for covered contractor employees, even if the employee never works at either a covered contractor workplace or Federal workplace during the performance of the contract. A covered contractor employee’s residence is not a covered contractor workplace, so while in the residence the individual need not comply with requirements for covered contractor workplaces, including those related to masking and physical distancing, even while working on a covered contract.

Considering the goal of the mandate is to get vaccines into as many arms as possible, this requirement makes sense. But from an employer’s standpoint, it negates my ability to manage my workforce. If an employee is so opposed to the vaccine (for whatever reason) that he or she is willing to risk their job to avoid it, wouldn’t a reasonable accommodation be simply allowing them to work from home? True, it wouldn’t ultimately lead to them getting the vaccine, and they might still pose a transmission risk to the general public. It would, however, avoid losing an otherwise good employee (and the performance disruption that results). And, as an employer, I might be more comfortable allowing a vaccine-hesitant employee to work from home, rather than deciding whether an accommodation applies.

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These issues aside, I think the thought behind the mandate is good: increased vaccination rates will help protect us all from the virus, while allowing the economy to fully reopen. But it’s not entirely clear Uncle Sam thought through the impacts on the small business contracting community.

Hopefully additional guidance will soon provide clarity. But if your business faces disruptions or risks from complying with these requirements, there are a few things you can do:

1. Talk with your employees, to make sure they understand these requirements. In fact, this is required under the third prong of the protocol. And, again, before issuing any requirements to your employees, it’s wise to talk to employment counsel.
2. Talk to the contracting officer so they understand the issues you’re facing through these requirements. If there’s a good relationship, they might be willing to work with you towards successful performance.
3. Track any delays and costs you encounter. John Mattox recently wrote about the possibility of receiving additional time to perform based on pandemic-related delays, and complying with the new FAR provision might count. Moreover, there could be ways to recover additional costs. Recovery is never certain, but the odds may be higher with detailed records about the delays encountered, costs incurred, and mitigation efforts you’ve made.

Keep an eye on GovConBrief as we continue to discuss these developments, and their impacts to small businesses. In the meantime, please give us a call with any questions.