More Guidance for Federal Contractors on That Vaccination Mandate…

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As federal contractors know, President Biden issued an Executive Order requiring the insertion of a clause into certain new, renewed and extended contracts that mandates compliance with Guidance issued by Safer Federal Workforce Task Force. The Guidance, which was issued on September 24, 2021, requires the vaccination of most of a contractor’s employees, as we discussed in detail in our September 2021 E-Update. The Task Force has now added to its FAQs on the Guidance, addressing specific issues as follows:

  • If an employee’s accommodations request for an exemption to the vaccine requirement is denied, the contractor must set a timeline for the employee to promptly become fully-vaccinated.
  • Even where the employee does not legally qualify for a medical exemption, there may be some limited circumstances in which the contractor may grant an extension to the vaccination deadline based on a documented medical necessity (e.g. the CDC recommendsdelaying COVID-19 vaccination for at least 90 days after receiving monoclonal antibodies or convalescent plasma for COVID-19 treatment).
  • The CDC recognizes only two medical contraindications to the COVID-19 vaccine: (1) severe allergic reaction to a previous dose or a component of a COVID-19 vaccine; or (2) immediate allergic reaction of any severity to a previous dose or a known allergy to a vaccine component. The Task Force notes that even if an individual is allergic to one component, they may not be allergic to all components in other COVID-19 vaccines.
  • The CDC recommends delaying (but not excusing) vaccination in the following circumstances, recognizing that there may be other clinical considerations supporting a delay: current COVID-19 infection; multisystem inflammatory syndrome in adults (MIS-A); monoclonal antibody or convalescent plasma treatment for COVID-19 infection; immunosuppressive therapies; and myocarditis or pericarditis.
    • The contractor should require full vaccination promptly after clinical considerations no longer recommend delay.
    • During the delay, the individual must follow all masking and distancing requirements for unvaccinated individuals.
    • The individual may be prohibited from performing work at government locations if the agency finds no safety protocol other than vaccination is adequate for the job responsibilities. Contractors must still meet their contractual requirements, however.
  • Vaccination is recommended for pregnant individuals and those trying to get pregnant. The Task Force, however, states that a contractor may allow a delay based on the employee’s particular medical circumstances, consistent with its process for reviewing delay requests.
  • COVID-19 vaccination should not be delayed based on the receipt of other vaccines.
  • Participants in a clinical trial may be considered fully vaccinated if they receive all doses of an actual vaccine, not a placebo, for which efficacy has been independently confirmed; at this point the U.S.-based AstraZeneca and Novavax COVID-19 vaccines meet these criteria. (We discussed clinical trials further in a blog post).
  • An individual is considered fully-vaccinated if they receive any combination of two doses of a heterologous (i.e. mix and match) FDA-approved/authorized or WHO emergency use listed vaccine series.
  • As long as a contractor has included the required clause, mandating compliance with the Safer Federal Workforce Task Force Guidance, in its first tier subcontracts, it may assume compliance by its subcontractor(s) unless it has credible evidence otherwise.