Airport Alert: Biden Administration Updates Guidance on Federal Contractor Vaccination Requirements
November 2, 2021
The Biden Administration's Safer Federal Workforce Task Force (Task Force) updated its guidance for federal contractors that are required to ensure their employees and subcontractors are vaccinated. The new guidelines provide broader flexibility for contractors to enforce the vaccination requirement on any non-complying employees, a signal that the administration has heeded the concerns raised by many industries about the potential impacts of the vaccination mandate on the supply chain and workforce, especially ahead of the holiday season.
Background. As airports are aware, on September 9, President Biden issued an executive order directing his federal agencies to ensure that all covered contracts and contract-like instruments include a clause requiring federal contractors and subcontractors to ensure that their employees are vaccinated. Over the past several weeks airports have begun to receive proposed contractual modifications from the General Services Administration (GSA) and Other Transactional Agreement (OTA) modifications from the Transportation Security Administration (TSA) that would require airports to ensure that their staff (and those of some subcontractors) are vaccinated.
Last week AAAE directed a letter to the Federal Aviation Administration (FAA), copying the GSA and TSA, outlining a series of questions and concerns that have been raised by our airport members regarding the application of the federal contractor vaccination mandate to public-use airports. There remains a high degree of uncertainty regarding the mandates and the applicability to airports. However, AAAE is working closely with FAA and our federal partners to gain further guidance and clarity for airports on these critical issues.
Updated Federal Guidance. The Safer Federal Workforce Task Force, which is led by the White House COVID-19 Response Team, GSA, and the Office of Personnel Management, is responsible for issuing guidance on the federal contractor vaccination requirements. With the updates released today, the Task Force noted federal contractors have the discretion to determine the "appropriate means of enforcement" if an employee refuses to be vaccinated. The Task Force also provided a series of other updates which can be viewed here.
Q: What steps should a covered contractor take if a covered contractor employee refuses to be vaccinated?
A: A covered contractor should determine the appropriate means of enforcement with respect to its employee at a covered contractor workplace who refuses to be vaccinated and has not been provided, or does not have a pending request for, an accommodation. This may include the covered contractor using its usual processes for enforcement of workplace policies, such as those addressed in the contractor's employee handbook or collective bargaining agreements.
One model for enforcement among employees with respect to non-compliance with a vaccination requirement is that being followed by Federal agencies. Guidance for Federal agencies is to utilize an enforcement policy that encourages compliance, including through a limited period of counseling and education, followed by additional disciplinary measures if necessary. Removal occurs only after continued noncompliance. Guidance for Federal agencies is that employees should not be placed on administrative leave while the agency is pursuing an adverse action for refusal to be vaccinated but will be required to follow safety protocols for employees who are not fully vaccinated when reporting to agency worksites.
During the time period of enforcement, the covered contractor must ensure the covered contractor employee at a covered contractor workplace is following all workplace safety protocols for individuals who are not fully vaccinated.
An agency may determine that a covered contractor employee who refuses to be vaccinated in accordance with a contractual requirement pursuant to EO 14042 will be denied entry to a Federal workplace, consistent with the agency's workplace safety protocols.
Vaccination Requirements for Large Employers. In addition to the vaccination requirements for federal employees and contractors, the Occupational Safety and Health Administration (OSHA) has been developing a rule that is expected to require employers with more than 100 employees to ensure their staff is vaccinated or being tested on a weekly basis. Today the OSHA rule cleared the Office of Management and Budget and the interagency review process, which means the administration is likely to release the rule sometime within the next few days. This is an area AAAE has been following closely because it may affect airports and their tenants. Additional information will be provided as soon as the OSHA rule is made available to the public.
