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COVID-19 and Contracting with the Feds – 8 Things Florida Businesses Need to Know

  1. On hold for now. The requirements of federal contractors and subcontractors under Executive Order 14042 – Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO – 14042”) issued September 9, 2021 and updated December 13, 2021 and the Workplace Safety: Guidance for Federal Contractors and Subcontractors (“Guidance”) issued by the Safer Federal Workforce Task Force (“Task Force”) on September 24, 2021, the Task Force issued Workplace Safety: Guidance for Federal Contractors and Subcontractors (“Guidance”) are on hold for now.

Although there are a litany of litigations seeking to challenge EO 14042 and the Guidance issued by the Task Force, the Georgia v. Biden, Civil Action No. 1:21-cv-163 in the United States District Court for the Southern District of Georgia has the most wide-reaching impact. On December 7, 2021, the federal court sitting in Georgia’s Southern District issued a preliminary injunction that enjoined enforcement of the vaccine mandate nationwide. This preliminary injunction has been appealed by the Biden Administration. On December 17, 2021, the Eleventh Circuit denied the Biden Administration’s attempt to stay the preliminary injunction pending the appeal.

The Biden administration must file its initial brief no later than January 3, 2022. The State of Georgia, other Plaintiffs, and intervenors must file their answer briefs no later than January 17, 2022 and any reply brief by the Biden administration must be filed by January 24, 2022. The Eleventh Circuit has stated that the Court will expedite the Biden administration appeal and set the case for the next available oral argument.

  1. The EO-14042 and Guidance Issued by the Task Force apply to “covered contractors” and “covered contractor employees”. “Covered contractors” and “covered contractor employees” are defined in the Guidance published by the Task Force on September 24, 2021 issued Workplace Safety: Guidance for Federal Contractors and Subcontractors.

A “covered contractor” is defined as: any prime contractor or subcontractor at any tier who is a party to a “covered contract”.

The definition of “covered contractor employee” under the Task Force’s Guidance is broad but not limitless. A covered contractor employee is one that works on a covered contract or performs work in connection with a covered contract. Work in connection with a covered contract includes work not specifically included in the covered contract but that is necessary to the performance of the covered contract. Examples of work not included in the covered contract but necessary to its performance includes “human resources, billing, and legal review.”

Even an employee of a covered contractor whose work for the covered contractor would not render them a covered contractor employee may still be a required to comply with the mandates in the Guidance. Whether or not that employee is deemed a defacto covered contractor employee is entirely dependent on the covered contractor’s workplace ecosystem. In order for employees of covered contractors who are not by the nature of their employment “covered contractor employees” they must be completely segregated from coming in contact with the covered contractor employees during the performance of the covered contract.

The Guidance requires that “unless a covered contractor can affirmatively determine that none of its employees in or at one building, site, or facility will come into contact with a covered contractor employee during the period of performance of a covered contract” then all the buildings, sites, or facilities controlled by the covered contractor are considered a “covered contractor workplace” and must maintain compliance with the workplace safety protocols enumerated the Task Force Guidance.

  1. A “covered contract” is broadly defined within EO-14042. “Covered contracts” include federal government contracts and contract-like instruments for services above the simplified acquisition threshold, generally $250,000. These include federal government contracts made by executive departments, agencies, and even independent establishments subject to the Federal property and Administrative Services Act, 40 U.S.C. 102(4)(A). There are a few exceptions that would make a contract with the federal government not a “covered contract”. These limited exceptions include grants; contracts with Indian Tribes under the Indian Self-Determination and Education Assistance Act; contracts with a value less than the simplified acquisition threshold 2.101 of the Federal Acquisition Regulation (“FAR”), $250,000.00; and subcontracts that are solely for the provision of products.
  1. The workplace safety protocols enumerated detailed in the Task Force Guidance cover three general areas:
    1. Vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation.
    2. Requirements related to masking and physical distancing while in covered contractor workplaces in compliance with the CDC guidance.
    3. Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.
  1. There are two primary areas of exemptions to the vaccine mandate are described in EO-14042 and the Task Force Guidance: (1) religious exemptions and (2) medical exemptions. According to the EO-14042 and the Task Force Guidance, the review of the covered contractor employee’s request for an accommodation for religious or medical reasons is to be done by the covered employer. A covered contractor employee with a valid religious exemption or medical exemption may request an accommodation by the covered employer. Whether the covered employer grants the covered contractor employee an accommodation and what reasonable accommodation is granted is at the discretion of the covered employer.
    • Religious Exemptions

Generally, under the law, employers have an obligation to accommodate an employee’s sincerely held religious belief under Title VII of the Civil Rights Act (Title VII), unless the accommodation creates an undue hardship. In religious exemption cases, undue hardship is defined as “more than a de minimis,” or minimal, cost or burden on the operation of the employer’s business.

For religious accommodations, the covered contractor employee could be asked to provide an explanation of his or her sincerely held religious beliefs and, if necessary, appropriate documentation from his or her religious leader regarding the religious belief that conflicts with the employer’s vaccination requirement.

    • Medical Exemptions

Under EO-14042 and the Task Force Guidance, requests for “medical accommodations” or “medical exceptions” should be treated as requests for disability accommodations.

For disability accommodations, the covered contractor employee should be asked to provide appropriate documentation from his or her health care provider regarding the nature of any impairment(s), the duration of the need for accommodation and the extent to which the impairment(s) conflict with the covered employer’s vaccination requirement.

Organizations should use the definition of a “disability” and a “qualified individual with a disability” under provisions of the ADA, along with information obtained during the interactive process, to help make this determination. The ADA defines disability as an impairment that substantially limits a major life activity. The Job Accommodation Network has resources to assist employers in making this determination. The ADA also includes a list of medical conditions that would automatically be considered disabilities.

In the event the covered employer needs to consult with the covered employee’s health care provider, the covered employer must obtain a written medical release or permission from the covered employee. The covered contractor employee’s health care provider may not disclose information or answer questions about the covered contractor employee’s disability without his or her permission.

    • It would be prudent to develop a policy and procedure for handling compliance with EO-14042, the Task Force Guidance and accommodation requests.

EO-14042 and the Task Force Guidance clearly require covered employers to track compliance with the guidelines and designate a person in charge of the same. Other laws require employers to accommodate an employee’s sincerely held religious belief. Additionally, the ADA and Rehabilitation Act apply in regard to how an employer may interact with an employee in regard to an employee’s medical information.

Under the current EO-14042, Task Force Guidance, and applicable law, the covered employer has the obligation not only to comply with EO-14042 and the Task Force Guidance but also to consider covered contractor employee requests for accommodations for religious or medical reasons. This obligation requires the covered employer to determine the validity of requested accommodations, and to grant accommodations that neither pose a direct threat or create an “undue hardship” for the covered employer. This obligation necessitates clear, written policies and procedures for ensuring compliance with EO-14042 and the Task Force Guidance and other laws implicated herein. Due to the complexity of this issue, the implicated laws, rights, and obligations, a covered employer’s accommodation consideration process may need to be routinely reviewed and modified as the climate surrounding this issue continues to evolve.[1]

Note that nothing herein has detailed what should occur in the event that a covered contract party is a “joint employer”.

  1. EO-14042 and the Task Force Guidance may fatally conflict with Florida Law. The requirements of EO-14042 and the Task Force Guidance may facially conflict with § 381.00317, Florida Statutes.

Section 381.00317, Florida Statutes, Private Employer COVID-19 vaccination mandates prohibited.  Prohibits Florida businesses from mandating employees be vaccinated without providing for individual exemptions. The exemptions detailed in § 381.00317 are more expansive than the exemptions permitted under the Task Force Guidance or the OSHA ETS. Under § 381.00317, individual exemptions that must be provided to individual employees allowing them to opt out of a COVID-19 vaccination requirement include:

(1) medical reasons that include but are not limited to pregnancy or anticipated pregnancy;

(2) religious reasons;

(3) COVID-19 immunity;

(4) periodic testing; and

(5) the use of employer-provided personal protective equipment.

Under the EO-14042 and the Task Force Guidance exceptions to the vaccine mandate are to be offered only in limited circumstances. Due to the fact the CDC recommends vaccinations for pregnant women and their partners, pregnancy or anticipated pregnancy would not be considered an applicable limited circumstance without other compounding medical factors.

  1. Consequences for violations.

Currently, EO-14042 and the Task Force Guidance will not be enforced due to the previously discussed Order of the Eleventh Circuit.

Alternatively, § 381.00317, Florida Statutes includes harsh penalties for employers who terminate an employee based on a COVID-19 vaccination mandate without offering, properly applying, or granting an exemption enumerated in § 381.00317. An employer with less than 100 employees can be fined $10,000 per violation and employers with 100 or more employees can be fined $50,000 per violation.

  1. The “What’s New” page and “For Federal Contractors” page of the Safer Federal Workforce website are good resources to stay up-to-date on this issue.

Compliance under both Florida and federal law is a fact-specific inquiry. An employer who is in doubt should seek legal advice on their specific situation to determine the applicability of EO-14042 and the Task Force Guidance. Contact us to learn how the current guidance and laws impact your business.

[1] See also https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

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