As contractors and agencies scramble to comply with the government contractor vaccine mandate, there seems to be growing confusion over whether contractors or federal agencies are responsible for evaluating whether contractor employees working at government sites are entitled to medical or religious accommodations. In some cases, agencies tell contractors that the government, not the

Mary Leigh Pirtle
Mary Leigh Pirtle helps employers navigate complicated and evolving employment law issues. She counsels clients on a wide range of day-to-day employment matters, and regularly conducts onsite internal investigations into allegations of employee misconduct. With experience in both traditional labor and employment litigation, Mary Leigh has represented employers against claims ranging from wage and hour violations to Equal Employment Opportunity Commission (EEOC) violations.
[WEBINAR] Mandatory Vaccinations for Government Contractors Are Here. What Should You Do Now?
On September 9, President Biden issued Executive Order 14042 requiring that federal contractors comply with forthcoming COVID-19 workplace safety guidance. That guidance, which was issued on September 24, is remarkably broad, requiring that employees working directly on government contracts, in connection with government contracts, or in the same facility as an employee in the first…
Contractors, You Will Get the Jab!
On September 24, following President Biden’s September 9 Executive Order, Ensuring Adequate COVID Safety Protocols for Federal Contractors, the Safer Federal Workforce Task Force (Task Force) issued new guidance on COVID-19 safety protocols applicable to federal contractors and subcontractors. It is notable that the guidance does not apply to grants.
Before the guidance was released, the Director of the Office of Management and Budget determined, as required by the Federal Property and Administrative Services Act that compliance with those measures laid out in the guidance will promote economy and efficiency in federal contracting. This determination was met because decreasing the spread of COVID-19 “will decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal Government.” There is no indication that the director considered the impacts of attrition or costs on businesses to administer these requirements.
Breakdown of Requirements under New Executive Order
These requirements, in addition to any requirements applicable in a federal workplace, apply to contractors and subcontractors with a “covered contract.” The obligations that the guidelines require to be part of a soon-to-be draft contract clause include:
- By December 8, 2021, “covered contractor employees,” regardless of prior COVID-19 infection and associated immunity must be “fully vaccinated” for COVID-19. This means that at least two weeks have passed after they have received the last required dose of an approved vaccine, except in limited circumstances where an employee is legally entitled to an accommodation.
Many contractors have questions regarding when an employee may be legally entitled to an accommodation. The guidance provides that this may be the case “because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance.” It continues, “[r]equests for ‘medical accommodation’ or ‘medical exceptions’ should be treated as required for a disability accommodation.”
After December, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded contract and by the first day of the performance period on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract. This also applies to contractor employees working from home on a covered contract.
- Compliance by covered contractor employees and visitors with published CDC guidance for masking and physical distancing is required while in a “covered contractor workplace.” This does not apply to covered contractor employees working from home. It does, however, require that in areas of “high or substantial community transmission,” even fully vaccinated individuals wear a mask in indoor settings. To determine the level of community spread, covered contractors must check the CDC COVID-19 Data Tracker County View website.
- Designation by covered contractors of a COVID-19 workplace safety coordinator at covered contractors’ workplaces whose primary duties appear to be communicating the required safety protocols to all covered employees and visitors and confirming compliance by reviewing the required vaccine documentation. COVID-19 workplace safety protocols may comprise some or all of this person’s regular duties.
President Biden Announces Mandatory Vaccination Requirements for Certain Employers
President Biden has announced a series of measures aimed at combatting the COVID-19 pandemic which will require certain employers to set forth mandatory vaccination requirements. These measures direct the Department of Labor’s Occupational Safety and Health Administration (OSHA) and the Safer Federal Workforce Task Force (Task Force) to set forth specific guidance, which we are still awaiting. However, here is what we know now:
OSHA Emergency Temporary Standard
According to President Biden’s September 9, 2021 briefing, OSHA has been tasked with developing an Emergency Temporary Standard (ETS) requiring companies with 100 or more employees to require employees be vaccinated against COVID-19 or be tested on a weekly basis. The ETS will also require these companies to provide paid time off for the time it takes workers to get vaccinated or to recover if they are under the weather post-vaccination. The fines for violating this rule are reported to be $14,000 per violation.…
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Labor & Employment Law Update: Continued COVID-19-Related Developments and Policy Guidance for Employers
Join us for a virtual seminar in which the firm’s labor & employment and employee benefits attorneys will discuss recent COVID-19-related announcements from the CDC, FDA and other relevant agencies, and the implications they have on how employers should structure policies and procedures moving forward.
In this session, we will provide guidance for navigating the…
Key Considerations for Emerging Companies: Employment Law Risks
The first few years of operations can be an overwhelming task for emerging companies, especially when it comes to navigating the wide range of employment laws that come with hiring new members of the team. Below is a list of issues to be aware of as you build and structure your workforce. Continue reading to…
Rights of Tennessee Employers to Bar Firearms and Weapons in the Workplace Remains Unchanged
Effective July 1, 2021, Tennessee’s Constitution Carry law allows individuals over the age of 21 (or military members between ages 18 to 20) to carry a firearm, both concealed and open, with or without a carry permit. However, this new law does not impact a private Tennessee business’ right to prohibit the possession of weapons…
New Bathroom Requirement for Tennessee Businesses Effective July 1, 2021
Please note that this blog post was updated on July 16, 2021 with information about the bill being deferred.
Update: New Bathroom Requirement for Tennessee Businesses Deferred
The United States District Court for the Middle District of Tennessee has temporarily enjoined the recently enacted legislation requiring all Tennessee public and private businesses to post a notice to the extent it has a formal or informal policy allowing a member of either biological sex to use any public restroom within the facility.
This preliminary injunction was issued on July 9, 2021 as the result of a lawsuit filed by the American Civil Liberties Union Foundation of Tennessee on June 25, 2021 requesting both preliminary and permanent injunctive relief against enforcement of the law on the grounds that it violates the First Amendment of the United States Constitution.
For now, and until further proceedings in this matter, the notice posting law that was previously effective July 1, 2021 will not apply to employers in Tennessee.…
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Strategies for Employers Operating with a Hybrid Workforce
I recently authored an article for the Nashville Business Journal discussing strategies to overcome risks for employers opting to continue to operate with a remote or hybrid workforce.
Telework introduces an increased risk of noncompliance with the Fair Labor Standards Act’s requirement that all non-exempt employees be paid for all hours worked, including any overtime hours, which is more difficult to monitor with dispersed employees. “Employers with remote workforces should clearly outline a timekeeping policy regarding the accurate recording of all time worked, and train employees on those expectations, including a requirement that remote workers obtain advance approval from their supervisor before working any overtime,” I stated in the article.
Another threat to monitor includes increased risk of network privacy and security loss. Employers should update security protocols, including employee training on remote access security and password protection to prevent unauthorized access to sensitive information. Investment in company-issued equipment with preferred antivirus software is also a crucial protective measure.
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EEOC Update: Employers Can Offer Vaccine Incentives to Workers
The EEOC has updated its guidance “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The new guidance clarifies that employers may offer incentives to employees to voluntarily provide documentation or other confirmation that they have received the COVID-19 vaccination from a third-party (i.e., doctor, pharmacy, health agency or other healthcare provider).
The EEOC has confirmed that requesting this documentation is not a disability-related inquiry covered by the ADA and is not an unlawful request for genetic information under GINA, but continues to caution employers to keep this vaccination information confidential pursuant to the ADA. However, the EEOC has distinguished incentives offered to employees for voluntarily receiving a vaccination administered by the employer or its agent. In that case, the EEOC cautions employers against offering incentives that are so substantial to become coercive, as “vaccinations require employees to answer pre-vaccination disability-related screen questions, [and] a very large incentive could make employees feel pressured to disclose protected medical information.”…
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