Does the Federal Contractor Vaccine Mandate Apply to Local Governments?

The federal government’s COVID-19 Action Plan has three vaccination prongs:

• a Centers for Medicare and Medicaid Services (CMS) requirement for vaccination of all employees of CMS-certified providers of specific enumerated services;
• an Occupational Safety and Health Administration (OSHA) requirement that employers adopt either a policy requiring vaccinations or a policy allowing employees a choice between vaccination and weekly testing; and
• a requirement that employees of federal contractors receive the final shot in a COVID-19 vaccination series no later than January 4, 2022 (the “federal contractor mandate”).

Previous blog posts have addressed the CMS and OSHA vaccination requirements (see here and here). This blog post addresses the federal contractor vaccination mandate. Read on to see whether the federal contractor vaccination mandate applies to your local government unit.

BACKGROUND

Federal Executive Order (EO) 14042 directed the Safer Federal Workforce Task Force (the “Task Force”) to extend federal workforce vaccination requirements to the employees of federal contractors and subcontractors. The Task Force issued guidance doing that on September 24, 2021 (the Guidance). Pursuant to EO 14042, new contracts and extensions or renewals of existing contracts with the federal government will require contractors and subcontractors to comply with the Guidance.

HOW DOES A LOCAL GOVERNMENT ENTITY KNOW IF IT IS A “FEDERAL CONTRACTOR”?

Determining who is a “federal contractor” has always been a confusing exercise. For this new vaccination mandate, the “federal contractor” rules of the Office of Federal Contract Compliance Programs (OFCCP) do not apply. Instead, the only relevant definitions are the ones set forth in EO 14042 and the Guidance.

Whether a unit of local government is a “federal contractor” matters, of course, because if it is, it must comply with the Guidance’s mandatory vaccination and COVID-19 safety rules. The Guidance defines a covered contractor as a prime contractor or subcontractor at any tier who is party to a covered contract. This means that a North Carolina local government doesn’t have to have contracted directly with the federal government to be covered by the federal contractor vaccination mandate. It could be a subcontractor to a contract between the federal government and the State of North Carolina.

Fortunately, two principles help local governments determine whether they are “federal contractors’ subject to the vaccination requirement.

First, to be covered, the contract must have been entered into since September 24, 2021, the day on which the Guidance was issued. Going forward, any new agreements related to federal contracts or federal funding, or any renewals or extensions of already existing agreements could be subject to the federal contractor mandate.

Second, for a contract to be covered, certain language – “magic language” – is required. The contract must contain a clause that says: “the contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.” See EO 14042 at section 2(a). The Guidance itself defines “covered contract” to mean a contract that contains this language. Any contract or subcontract without that language is not covered by the federal contractor mandate.

What Local Government Contracts and Subcontracts Are Likely to Fall under the Mandate?

Local governments receive a significant amount of funding that flows from the federal government to the State and from the State down. What follows are a few examples  — not, by far, an inclusive list.

The federal government provides the State with funding targeted to particular issues or diseases (e.g., emergency preparedness, diabetes prevention) to distribute to local public health departments. For examples, see here. Local health departments may also receive funding through the State through the Affordable Care Act’s Prevention and Public Health Fund. The Substance Abuse and Mental Health Services Administration (SAMHSA) of the U.S. Department of Health and Human Services provides Community Mental Health Block Grants that flow through the State to area mental health authorities (LMEs/MCOs).

Similarly, the Environmental Protection Agency, the Department of Agriculture and Department of Housing and Urban Development provide funding for local drinking water, wastewater, and stormwater infrastructure. The Clean Water State Revolving Fund, the Drinking Water State Revolving Fund, and the Community Development Block Grant distribute federal funds through the North Carolina Department of Environmental Quality. See here for the Congressional Research Service’s August 2021 report, Federally Supported Projects and Programs for Wastewater, Drinking Water, and Water Supply Infrastructure. See also here for a blog post from the School of Government’s Environmental Finance Center on water infrastructure projects.

Local law enforcement agencies receive federal funding through the Community Oriented Policing Services or COPS program and the Byrne Justice Assistance Grants (Byrne JAG), and programs that help fund bulletproof vests, body cameras and the like. For an article on federal funding of local law enforcement, see here.

Will receipt of funds through programs like these cause local governments to become “federal contractors” subject to the federal contractor mandate? On one hand, local governments receiving this kind of funding are obligated to do certain things in return, even when the funding flows through the state. That is the essence of a contract. It would seem to make such a local government a sub-contractor. Another argument for thinking that such funding will bring local governments within the ambit of the contractor mandate is the broad scope of the Guidance definition of “a contract or contract-like instrument” as

[a]n agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. This definition includes, but is not limited to, a mutually binding legal relationship obligating one party to furnish services (including construction) and another party to pay for them. The term contract includes all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing. The term contract shall be interpreted broadly as to include, but not be limited to, any contract within the definition provided in the FAR at 48 CFR chapter 1 or applicable Federal statutes. This definition includes, but is not limited to, any contract that may be covered under any Federal procurement statute. Contracts may be the result of competitive bidding or awarded to a single source under applicable authority to do so. In addition to bilateral instruments, contracts include, but are not limited to, awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; exercised contract options; and bilateral contract modifications. The term contract includes contracts covered by the Service Contract Act, contracts covered by the Davis-Bacon Act, concessions contracts not otherwise subject to the Service Contract Act, and contracts in connection with Federal property or land and related to offering services for Federal employees, their dependents, or the general public. (Emphasis added)

This is a very broad definition. It is not limited to contracts above a certain dollar amount. It is not limited by the size or type of the employer organization. It appears to include not only services provided directly to the federal government, but also services provided to others for which the federal government pays. So that’s the argument for at least some local government coverage under the federal contractor vaccine mandate.

But arguing against local government coverage is the text of EO 14042 itself, which in section 5(b)(1) exempts “grants” without further definition. Many of the federal funding programs described in the paragraphs above are described as “grants.”

An argument against broad coverage may be found in EO 14042 section 5(b)(3), which says that the order does not apply to “contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold, as that term is defined in section 2.101 of the Federal Acquisition Regulation.” The Federal Acquisition Regulation is too complicated to discuss at length here but suffice it to say that this reference would exclude contracts less than either $250,000 or $800,000, depending on the subject matter (whether those minimum values would apply to the contract or the subcontract isn’t clear).

Only time will tell what this means for local government entities that receive federal funding. Will new contracts contain the necessary “magic” language? Will there be further guidance from the federal government?

FEDERAL CONTRACTOR MANDATE REQUIREMENTS

Now let’s think about units of local government who do end up meeting the definition of “federal contractor.” They will to meet several requirements.

Vaccination Requirements

Contractors and subcontractors who are covered by EO 14042 and the Guidance must ensure that all covered employees are fully vaccinated against COVID-19 by January 18, 2022. In other words, employees must have received their final dose no later than January 4, 2022. A person is considered fully vaccinated two weeks after receiving the final dose. The final dose is the second shot for the Pfizer and Moderna vaccines and the first and only shot for the Johnson & Johnson vaccine. For contracts after January 4, covered employees must be fully vaccinated by the first day of the contract performance period. There is no vaccination or testing alternative. All covered employees must be vaccinated unless they are entitled to a medical exemption as an accommodation under the Americans with Disabilities Act (see here) or a religious exemption as an accommodation under Title VII (see here).

Contractors and subcontractors must document their employees’ vaccination status by inspecting one of the following documents:

• immunization record from a healthcare provider or pharmacy;
• a copy of the CDC Covid-19 Vaccination Record card:
• medical records documenting the vaccination;
• a copy of immunization records from a public health or state immunization information system;
• any other official documentation that contains the type of vaccine administered, the date of vaccination and the name of the healthcare profession or clinic administering the vaccine.

Masking and Physical Distancing Requirements

Contractors and subcontractors must also comply with rules on masking and physical distancing in covered workplaces. The rules vary depending on whether the contractor employee is vaccinated or unvaccinated. The overriding requirement is that contractors and subcontractors must follow Centers for Disease Control (CDC) guidance for mask wearing and physical distancing.

Fully Vaccinated Employees

At the time of publication of this blog post, the CDC recommends that fully vaccination people wear a mask in indoor settings in areas of high or substantial community transmission. They need not wear a mask indoors in areas of low or moderate community transmission. The Guidance requires contractors and subcontractors to check the CDC COVID-19 Data Tracker County View website once a week to determine the level of transmission for their area. When the level of community transmission decreases from high or substantial to moderate or low, the lower level must remain there for at least two consecutive weeks before the lower-level protocols apply. Fully vaccinated people do not need to observe physical distancing regardless of the rate of transmission in the area.

Employees Who Are Not Fully Vaccinated

There will, presumably, be very few unvaccinated employees – only those with medical or religious exemptions. For unvaccinated individuals, the Guidance requires that masks be worn at all times indoors, as well as in crowded outdoor settings where there is close contract with other employees or citizens. Employees who are not fully vaccinated should also maintain six feet from others wherever possible. These requirements apply regardless of the level of community transmission. Exceptions may be made when unvaccinated individuals occupy individual offices with closed doors or for a limited time when an unvaccinated employee is eating or drinking.

Note that the masking and physical distance requirements applicable to contractor and subcontractor employees also apply to any visitors to a covered contractor workplace.

Compliance Officer

Finally, covered contractors and sub-contractors must designate someone to coordinate COVID-19 workplace safety efforts and compliance with the federal contractor mandate. The coordinator must ensure that information about the federal contractor mandate is provided to all covered employees, as well as any other people likely to be present at a covered workplace.

If a Unit of Local Government is Covered, Are All of Its Employees Subject to the Mandate?

Once a local government determines that it is subject to the federal contractor mandate, its next step is to figure out which of its employees are subject to the mandate. This can be tricky. Think of the administration building. Within the administration building there are likely to be both employees doing work in connection with the federal contract and others whose work is completely unrelated.

Let’s consider a more detailed hypothetical. Imagine that Jenny Just, an employee of the Paradise City police department, has job duties that involve performance of a federal contract that is covered by the federal contractor mandate. Her physical workplace is in the police department, which is itself housed in the Paradise Public Safety Complex. The complex also houses the fire department and EMS administrative offices, and the emergency management offices. The contract under which Jenny Just works is Paradise City’s only federal contract. Are all Paradise City employees subject to federal contractor vaccination and COVID-19 safety mandate? Or is just the Paradise Public Safety Complex subject to the federal contractor mandate? Or maybe just police department employees?

In Questions 8 and 9 of its Frequently Asked Questions Appendix, the Guidance addresses this issue. If Jenny Just does not come into contact with other Paradise City employees who work outside of the public safety complex, then none of the city’s other work locations will be subject to the federal contractor mandate. If Jenny Just is likely to be present only on one floor of the public safety complex or only in the police wing of the complex, then employees on other floors or in other areas of the building will not be subject to the federal contractor mandate, if Paradise City can affirm that no employee on another floor or elsewhere in the complex will come into contact with Jenny Just. The city would be responsible for making sure that there aren’t any interactions between Jenny and employees in other parts of the building. This includes determining that there are no interactions through a main lobby, on elevators or stairwells, in kitchen or lunch areas or in parking garages. If the city cannot affirm that there will be no interactions between Jenny and those working in other areas of the building, then those employees with whom Jenny does interact would also be covered by the federal contractor mandate. Chances are that most of the police department – or at least most of the police department’s administrative office staff – will interact with Jenny and will be subject to the mandate.

WHAT SHOULD A LOCAL GOVERNMENT DO NOW?

A local government’s first course of action should be to work with its attorney to answer a basic question: do any contracts entered into since September 24, 2021 or any upcoming extensions of any agreement with the federal government or with the State for the receipt of federal funds contain the “magic language” requiring compliance with the mandate? If so, the local government unit qualifies as a contractor of subcontractor subject to the federal contractor vaccination mandate.

If any of the contracts contain the language requiring compliance with the mandate, the local government must next determine which employees will be doing work in connection with the contract or contracts in questions, where they will be doing that work, and what other employees or groups of employees they will interact with. Depending on the nature of the covered contract work, the number of employees working on the contract, and the physical layout of the workplace, the mandate may require only a few employees to be vaccinated – or it may turn out to be a considerably larger group of employees than just those doing contract-related work. The number and scope of employees subject to the federal contractor vaccination requirement will vary from local government to local government.

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