Task Force Issues Guidance for Federal Contractors Vaccine Mandate

On Sept. 24, the Safer Federal Workforce Task Force issued its expected “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.”  The guidance was published in accordance with the requirements of President Biden’s six-part “Path Out of the Pandemic” COVID-19 action plan, which includes two separate executive orders: Executive Order 14043 titled “Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees” and Executive Order 14042 titled “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors.”

The unanswered question for credit unions is whether “federal contractors” in Executive Order 14042 includes financial institutions with federal share and deposit insurance, which are considered government contractors within the meaning of the regulations implementing Executive Order 11246 (Affirmative Action Program).

The implementing regulations for Executive Order 11246 have consistently defined a government contract as any agreement or agreement modification between any contracting agency and any person for the purchase, sale, or use of personal property or nonpersonal services. The term "nonpersonal services" explicitly includes agreements for insurance. Note, however, that this is a Department of Labor Office of Federal Contract Compliance Programs interpretation only and applies to compliance with Affirmative Action Program obligations under Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974.

Neither Executive Order 14042 nor the Task Force guidance clarify that financial institutions with federal share and deposit insurance are included in the term “federal contractors.” Therefore, until there is additional guidance such as regulations implementing Executive Order 14042 or guidance from NCUA, there is nothing to state that credit unions are federal contractors for purposes of Executive Order 14042. Credit unions should consult with legal counsel to determine if there are any state mandates that apply or if employers can mandate that employees get vaccinated as a condition of employment.

The mandate likely does apply to credit unions that have contracts in connection with federal property or land and related to offering services for federal employees, their dependents, or the general public, since the Task Force guidance defines the term “contract” to include “all contracts and any subcontracts of any tier thereunder, … including lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements… whether entered into verbally or in writing.” The term contract shall be interpreted broadly. Such credit unions would have to look to their contract with the federal agency to determine if they are considered a “contractor” for whatever service or agreement is in place between the agency and the credit union. 

So, if a credit union has rent-free space at a federal building, the contract for that space would likely define the relationship between the credit union and the agency. The Task Force guidance says that federal contractor employees covered by the rules who are not entitled to exemption "must be fully vaccinated no later than Dec. 8 and adds that, after that date for future contracts, employees must be vaccinated by the first day of performance on a new or extended contract.

Regarding the OSHA ETS for employers with 100-plus employees, the Department of Labor will issue an Emergency Temporary Standard requiring employers with more than 100 workers to have them inoculated or tested weekly. This policy is expected to cover more than 80 million workers. We will have to wait for the OSHA standards to see precisely what is going to be required of larger employers beyond the state mandates. Secretary Gina Raimondo said that rule would be released in October.