Mark Pestronk
Mark Pestronk

Q: In your Oct. 11 Legal Briefs column, "FAQs on the federal vaccine mandate," you answered several questions about whether and when President Biden's vaccine mandate for federal contractors would apply to travel agencies that have subcontracts with federal contractors. My agency is a travel management company that handles travel for some large defense and civilian contractors. I have a couple of questions: By when must our employees be fully vaccinated? Is there an exception allowing weekly testing for nonvaccinated employees?

A: The vaccine mandate will apply only after you have a clause in your subcontract requiring compliance with the federal mandate. If you have no such clause today, the clause does not apply to you yet.

The clause must be inserted in contracts, subcontracts or task orders awarded or entered into after Nov. 14 if the government or prime contractor issued the solicitation on or after Oct. 15. The clause must also be inserted in renewals or exercises of options after Oct. 15 on existing contracts, subcontracts and task orders.

Government agencies and prime contractors are also "strongly encouraged" to apply the clause to existing contracts and subcontracts, no matter how small. However, you are not obligated to accept the clause (and the mandate) unless the clause is part of renewal or exercise of an option.

So, if you never hear from your prime contractor about the mandate, then the mandate does not apply to you. Conversely, if your prime contractor insists on inserting a clause in your existing contract on pain of termination, you will really have no choice except to comply if you want to continue as a subcontractor.

If the clause is already in your subcontract, or if it is added in the next month or so, the new deadline for making sure that all employees are fully vaccinated has been extended from Dec. 8 to Jan. 18. Since you are not considered fully vaccinated until two weeks after your last shot, the shot deadline is Jan. 4.

Unlike the federal mandate for companies with 100 or more employees, the contractor mandate has no option for testing in lieu of vaccinations. Nor are there vaccination exceptions for employees who work on government-contractor travel only from home, although those employees do not have to comply with the masking and social distancing requirements of the rule.

There are several grounds for allowing an employee to delay getting vaccinated, and you can find a list of such reasons (and answers to many other questions) here: www.saferfederalworkforce.gov/faq/contractors. If an employee has grounds for a delay, the employer must set a deadline for later vaccination.

As you may have read, multiple states and companies have gone to court to try to stop the contractor vaccine mandate. I don't think that they will prevail, because the federal government has the right to protect its own workforce by limiting government employees' exposure to unvaccinated contractor employees and because there is ample precedent for requiring contractors to follow government rules in their businesses. 

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