Restrictions and mandates intended to slow the spread of the COVID-19 virus and raise public immunity have led to a lot of controversy — and the White House’s new executive order imposing a COVID-19 vaccine mandate on federal contractors is causing a lot of friction.
October 28, 2021, saw the most recent move in the push and pull between federal and state politicians as Florida Governor Ron DeSantis announced that the state filed a lawsuit seeking a preliminary injunction to halt the December 8, 2021 implementation of the mandate.
“Just because you’re a business that does federal contracts, it’s not right for the federal government to come in and rewrite those contracts and then try and shoehorn this in,” DeSantis said. “And then if you don’t comply, you either have to fire people or, if you don’t comply, they’ll just cancel the contract entirely even though this is something you bid for and won fair and square. That’s not the way we think business should be done.”
Florida is not the only state that is looking to take action against the new regulations either. September 14, 2021, saw the Attorney General of Arizona file the first lawsuit challenging the mandate, and 23 Republican Attorneys General threatened to sue the White House in a letter sent to President Biden in September 2021.
More moves could come soon amidst pressure from some in the construction industry. Bobby Stern, executive director of the Association of Oklahoma General Contractors (AOGC), issued a statement in September 2021 in which he noted “grave concerns” within the organization over the White House’s move.
“Biden’s new Executive Order (EO) will impact highway construction in Oklahoma and across the United States by effectively shutting down much-needed work to build, maintain, and replace dangerous roads and bridges,” Stern claimed. “Yes, we do, and need to, take the new COVID (Delta) variant very seriously. However, a blanket mandate on companies with more than 100 workers who do highway construction is grossly unreasonable and not a fit for every workplace.”
“These hard-working men and women work outside in an already socially-distanced workplace. If they are inside a piece of machinery equipment, they are alone — isolated from others. If highway workers are forced to vaccinate, many will leave the job without pause or hesitation.”
Part of the concern being voiced is over the already-difficult situation being caused by the pandemic, with stress on the supply chain hitting levels never before seen and rising concern over labor shortages affecting contractors.
“This EO only adds to the distress of road and bridge builders having enough employees on hand to complete essential construction projects vital to our safety and the nation’s supply chain,” said Stern. “It has already been challenging enough to find workers while people are able to collect a paycheck for staying home.”
“Get used to those orange barrels and abandoned work sites,” Stern added. “This mandate is too broad, overreaching, and will bring highway construction to a screeching halt across the United States.”
Many others aren’t convinced that the vaccine mandate does enough to truly address the problems posed by the new more contagious and deadly Delta variant of COVID-19.
“COVID-19 vaccines are safe and effective, but they are only one piece of a broad effort needed to keep workers safe,” said Jessica E. Martinez, co-executive director of the National Council for Occupational Safety and Health. “The highly contagious delta variant of COVID-19 requires a comprehensive approach to protect all workers.”
The White House remains committed to the efficacy and importance of the new requirements, however.
“This is a once in a generation pandemic that has taken the lives of more than 700,000 Americans, and the President has committed to pulling every lever possible to save lives and stop the spread of the virus. Vaccine requirements work: They’re good for workers, good for the economy, and good for the country,” a White House official said. “The President has authority to protect the federal workforce and promote efficiency in federal contracting in this way.”
Not everyone is sure what the new mandate applies to, however, and how it will be enacted for contractors.
“Right now, we don’t know what kind of employees will be covered. For example, do part-time employees count? Do seasonal employees count?” said Katie Ervin Carlson, attorney at Dorsey & Whitney. “I’ve also had questions that I don’t know how to answer yet in terms of how do you calculate 100. So, what if an employer has a few employees in multiple states, is there going to be some sort of distance requirement?”
It could be important for contractors to learn whether they need to be following the new mandate, as well. “If one of your customers has ever asked you to sign an affirmative action plan, sometimes that’s a signal that you might be a [federal] contractor,” added attorney Drew James. “If you’re part of a large company that has a parent organization and that parent has contracts with the federal government, it’s worth calling a good lawyer because you may well be a [federal] contractor.”
“As far as who must be vaccinated, that includes all covered contractors, subcontractors, and their employees, whether full-time or part-time who work either ‘on or in connection with a covered contract’ or ‘at a covered contractor workplace,” Benarroche said, specifying that the requirements include “Not just actual construction work, but also work involving things like human resources, billing, and legal review; including any employee that is working remotely.”