Contractors say if they roll up their sleeves to help the government, that is not what they have in mind

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This vaccine mandate for federal employees and contractors who work on-site in federal facilities made springs. Practical, legal, constitutional. No less than the federal authorities are building contractors wondering how all of this should work. Some of the issues that concern the industry from a legal point of view, Federal Drive with Tom Temin turned to Holland and Knights partner Eric Crusius.

Tom Temin: Eric, it’s good to have you back.

Eric Crusius: Great to be here. Thanks very much.

Tom Temin: Good. So what does the industry see in it – a legal challenge, a logistical challenge? What’s happening?

Eric Crusius: I think they see it primarily as a logistical challenge and a challenge to the staff as you have a situation where vaccines may be required for a large number of contractors. And I’m not here to comment on whether the policy is the right or the wrong policy. But the implications are that there will be some employees working for contractors who do not want to be part of this mandate and some who are glad it is there. So, for the next several months, the human resources department at these different companies is going to be really challenged to really think about what to do. And to make this mandate clear to contractors, it doesn’t specifically say that it will be a vaccine mandate, there will essentially be a resolve in the next few weeks. What health measures need to be taken? One of those that are on the table is vaccines, and everyone expects vaccines to be a part of it. But technically it is not part of it.

Tom Temin: And when you look at your huge list of clients, do you find that most of them already have their own vaccine mandate or vaccine and already have a certified type of regimen?

Eric Crusius: Some do. And I think the whole idea is gaining momentum since legal challenges to mandates have failed. And they haven’t really been successful, save for maybe one outlier here and there in federal court for the past 100+ years. I think companies are getting more comfortable with the idea of ​​mandating vaccines and other health measures, so I see more companies taking up that.

Tom Temin: So how should companies go about it? If they have, or they think okay, we have federal staff, we are going to require them to be vaccinated, there has to be a review mechanism or a reporting mechanism. None of this seems to be really present in government or industry anymore.

Eric Crusius: To the right. As the saying goes, we all build the airplane the way it flies. I think positive evidence of this is the vaccination cards everyone had, which seemed pretty easy to replicate and get fake versions. You saw people get caught with it. And I think this is another example of everything happening so quickly, and events changing so quickly, that there really isn’t a well thought-out system in which everyone can keep track of people’s vaccination status. I wouldn’t be surprised if there was a central database at some point, but we’re not there yet, so we have to see what companies are doing. But I have to imagine that it will be up to the individual companies to find out. And then they are the ones who, when signing their contracts, must certify that they have taken an adequate measure to see if the employees need vaccination or what other health measures are in place but that they are vaccinated or whatever they are have promised.

Tom Temin: Would you then recommend that customers simply make a certified, possibly notarized list of the people who will be on site at federal authorities, make a list of the vaccinated and give it to the client, the agency’s general counsel or something? I mean, there is a way to do that ad hoc in the meantime.

Eric Crusius: Possibly. Part of that will depend on what the clause looks like when it comes out and what the real health requirements are if they have vaccines in them. What I would generally recommend contractors to do is get this confirmation from their individual employees and match this with those required for these health measures or vaccines. And then essentially when the list is required and submit that list to the agency. A list may not be required, it can just be that you accept this contract, you certify that you have taken due care to ensure that the correct health measures have been taken, including potential vaccines. And that’s all, I suppose, that’s all that will be required. And in this case it is up to the contractor to ensure that he fulfills the required due diligence.

Tom Temin: We speak to Eric Crusius. He is a partner at Holland and Knight law firm. And of course there are still quite paranoid people among us who irradiate their grape nuts before taking them from the supermarket. And that comes from the idea of ​​the product provider. And you’ve noticed that the way the executive orders and mandates are written seems to involve product people who you would expect to simply send goods to a federal agency rather than be there as employees.

Eric Crusius: Yeah, it’s really interesting. And that may be due to the fact that the implementing regulation was probably a bit hasty due to the current events. However, if you look at the exclusion list of contracts, subcontracting for products is an exclusion. That makes me think, in my opinion, okay, that means that there are master contracts or products included. However, if you look at the list of included contracts, main contracts with products are not specifically taken into account. I think this is an area where we just don’t have a lot of security and hopefully we will soon enough as some of these product providers are pretty large companies that need to get up to speed and prepare for a new requirement , namely quite significant. It will potentially require a lot of interaction with your employees in different locations. So this is an area that, as you said, we are looking very closely because I hate to be critical, but I just don’t think it has been made as clear as it could have been. And I’m sure it depends on how quickly it was designed.

Tom Temin: Well, probably they were envisioning services, people working on site at an agency, at a network operations center, or whenever they were doing it, in software development. And if new cables or new monitors are needed, from a sub to one of the service companies, I think they might have that in mind – sounds like that.

Eric Crusius: Yes. And I think that’s an excellent point. Think of contracts out there, like NASA’s SEWP vehicle, where it’s primarily a product contract, but there are services that come with it that require people to go on site. So I think that’s the classic example. So you didn’t mean to exclude all product suppliers, but I think I obviously have to put a little more meat on these bones or at least make the meat so that you can tell what kind of meat it is – is it lamb, is it beef, it’s chicken – before they move too far forward. And hopefully we just get some maybe at least formal guidance from the government so that the companies involved in this area understand what to do.

Tom Temin: And I think it’s impossible to tell, but among the companies you deal with have you seen any evidence that at this point they are putting people back on the ground, with agencies having people back in their facilities? As far as we can tell, it is not yet widely used.

Eric Crusius: Yes, some have. And it depends a little bit on the type of work they do, if there is a permit and things like that, but some have and they have different requirements depending on the type of work and how close the contact in the agency is. So at the moment there is no single guideline. And of course that’s not ideal either, because different employees are treated differently and wonder why they are treated differently. And contractors just want, generally with compliance, they just want to be told clearly what to do, and they like to do it. Maybe happy is too strong a word, but they will. And they just want to be compliant so they can keep doing business with the government and getting paid and all that stuff. So what is really worrying is when there is confusion because there are uneven demands or the demands themselves are not clear how we are with them.

Tom Temin: Eric Crusius is a partner at Holland and Knight law firm. Thanks very much.

Eric Crusius: Thanks very much.


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