Mark Pestronk
Mark Pestronk

Q: In your Sept. 20 Legal Briefs column, "Federal vaccine mandate could affect agencies," you wrote that the government would be issuing guidance about how the president's vaccine mandate would affect my travel agency, which performs corporate travel services for several federal government contractors. I understand that the mandate applies to prime contractors and subcontractors, but I have a bunch of questions:

• Where can I find the rule?

You can find it here. Although the document is called "guidance," it is really a binding rule or regulation because it implements the president's binding executive order.

• Are we a subcontractor?

The rule applies to all federal contractors and subcontractors who perform services, but it does not define subcontractors.

However, my research shows that the federal government deems a business to be a subcontractor if it performs services that promote the efficiency and economy of a prime contractor's work on the prime contract. In my view, this makes you a subcontractor, even if you do not have a document called a "subcontract agreement" or even any written contract at all. But you probably need to ask your prime contractors whether they consider your agency to be a subcontractor under the rule.

• Do we have to ensure that all our staff are fully vaccinated against Covid? If so, by what date?

Yes, with some exceptions. The government's own Q&A states, "Covered contractor employees must be fully vaccinated no later than Dec. 8." The term "contractor" is defined to include subcontractors. However, that deadline may not apply until you have a new subcontract or amendment that includes a clause with the new mandate.

• Does the rule apply to all our employees: full-time, part-time and home-based?

The rule requires vaccinations for all full-time and part-time employees in your office even if only one person works on a federal contract. The vaccination requirement also covers home-based employees who work on a federal contract, even if they never come into the office.

• What about our independent contractors (ICs) who work on government contractor travel?

The rule does not require you to ensure that ICs get vaccinated, but if you have ICs working on government contracts, the ICs themselves need to ensure that they themselves comply.

• Are there any exceptions?

An employer should make an accommodation for employees who cannot be vaccinated because of a medical condition or sincerely held religious belief, practice or observance. There are otherwise no exceptions for employees who previously had Covid, and there are no testing-out exceptions.

• What about masks and physical distancing?

In addition to the vaccination requirement, every employee (except home-based employees) has to wear a mask at work in communities of "substantial community transmission" under the CDC definition, which currently includes almost all of the U.S. For vaccinated and masked employees, physical distancing is not required.

• What are the penalties if we fail to ensure that everyone is vaccinated?

The prime contractor could withhold payment or terminate your subcontract.

CORRECTION: This story was updated to address ambiguity about the Dec. 8 vaccination deadline.

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