Federal contractor personnel must "attest to" COVID-19 vaccination

Federal contractors need to watch this issue very closely. The White House hasn’t released a copy of the official Presidential executive order, but only a fact sheet. So we can’t tell you all the ramifications of this order—except to say that it can be a mine field for employers. So far, two critical issues haven’t been addressed:

1. Religion-based objections to getting vaccinated.
2. Legitimate medical reasons for not getting vaccinated.

At first glance, this appears to be a vaccination mandate, but apparently Federal Government contractor personnel must either "attest to" the vaccination or follow other mandated practices.

So stay tuned to the Third Shift Employment Law Blog for the latest updates about this situation.

Here’s the only official guidance we can provide at the current time:

“Strengthening Safety Protocols for Federal Employees and Federal Contractors. Today, the President will announce that to help protect workers and their communities, every federal government employee and onsite contractor will be asked to attest to their vaccination status. Anyone who does not attest to being fully vaccinated will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a weekly or twice weekly screening testing requirement, and be subject to restrictions on official travel.”

—From fact sheet issued by the White House on July 29, 2021.

Vaccinations required by non-government employers

Many employers have already learned of mandatory vaccine guidance applicable to private enterprises. On May 21 and June 21, 2021, the Equal Employment Opportunity Commission (EEOC) issued revised guidance about vaccines. See section K of the guidance. (Other parts of the guidance were modified on July 28, 2021).

Although there can be nuances under many circumstances, as a general rule, private employers are permitted to require mandatory vaccines for their employees. As the Delta variant of COVID-19 grows, many employers are considering a mandate that they previously thought would be unnecessary. The message to such employers is that they have the right to do so, and we expect that as conditions worsen, federal and some state governments will urge private employers to mandate vaccines.

Employers who choose to explore this possibility should consult with legal counsel to ensure compliance with relevant EEOC guidance. Legal counsel will ensure that employers mandating vaccines—

• Have a qualification standard that applies to all employees.
• Comply with the requirements to make reasonable accommodations for sincerely held religious beliefs or for disabilities.
• Keep the responses to screening questions and vaccination status confidential.
• Prevent harassment of employees that don't get vaccinated because of religious belief or disability.

In addition, employers may choose to provide incentives (both negative and positive) for getting vaccinated, with the only limitation being that the incentive cannot be so substantial as to be coercive. Items such as small gift cards are generally acceptable, but again, specific legal advice should be sought.

Items on this web page are general in nature. They cannot—and should not—replace consultation with a competent legal professional. Nothing on this web page should be considered rendering legal advice.

© 2021