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On September 24, 2021, the Safer Federal Workforce Task Force issued guidance for federal contractors and subcontractors concerning various safety protocols (the Guidance) as required by President Biden’s Path Out of the Pandemic and Executive Order 14042 (the Order). The stated purpose of the safeguards set forth in the Guidance are to decrease the spread of COVID-19, which will decrease worker absences, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal Government.

As a threshold matter, the Order does not apply to all federal contractors. Specifically, the Order applies to contracts for services, construction, or leasehold interest in property; services covered by the Service Contract Labor Standards; concessions; and work relating to federal property lands and related to offering services for federal employees, their dependents, or the general public. The Order specifically excludes grants, contracts or contract-like instruments with Indian Tribes, contracts with a value equal to or less than the FAR simplified acquisition threshold (currently $250,000), employees performing work outside the United States, and subcontracts solely for the provision of products. However, the Guidance also strongly encourages agencies to incorporate clauses requiring compliance with the Order into contractors that are not covered or directly addressed by the Order.

Further, the requirements apply only to a covered contract, which is defined as one that includes a provision that the contractor will “comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.” Stated differently, simply being a federal contractor does not mean all employees must be vaccinated by the deadline.  Instead, the requirements apply to any new solicitations issued on or after October 15, 2021, the option to extend an existing contract on or after October 15, 2021, and new federal contracts awarded on or after November 15, 2021. However, agencies are again strongly encouraged to incorporate a clause requiring compliance with the Order into existing contracts and contract-like instruments prior to the date upon which the Order requires inclusion of the clause.Continue Reading Federal contractors and subcontractors receive guidance on President Biden’s vaccine mandate, including December 8, 2021 compliance date

Mandatory vaccine policies became even more of a scorching hot topic after the Biden Administration announced its Path Out of the Pandemic initiative (which we previously wrote about here). Some employees may have a legitimate medical reason for refusing a COVID-19 vaccine (e.g., an allergy to vaccine components). But what about an employee claiming to have a religious objection to taking the vaccine? We have recently seen clients experiencing an influx in requests from employees seeking a religious accommodation to be exempt from the company’s mandatory vaccine policy. Below, we discuss some of the complex legal and practical issues employers should consider when navigating these unchartered waters.

Quick recap of the “religious exemption”

Title VII of the Civil Rights Act (Title VII), and similar state and local anti-discrimination laws, prohibit employment discrimination on the basis of religion. To comply with those laws, employers are generally required to accommodate an employee’s “sincerely held” religious belief, observance or practice. A religious accommodation is an adjustment to the work environment that, once implemented, allows the employee to continue working while also complying with his or her religious beliefs. In guidance issued earlier this year, the EEOC stated “[t]he law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.” Even if the religious assertion seems irrational or is not the actual teaching of a recognized religious group or denomination, the relevant standard under Title VII is the sincerity of the individual’s belief.

Determining what a “sincerely held” religious belief means

Here is where it gets tricky. The EEOC and courts have interpreted “religious belief” very broadly under Title VII. An employee does not have to show they attend a place of worship, are a member of an organized religion, or even believe in a deity. Nor does an employee seeking a religious accommodation need to provide a note from their priest or spiritual advisor verifying that employee’s belief. According to the EEOC, a “religious belief” includes any “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” In its Compliance Manual, the EEOC warns employers should not be in the business of trying to decide whether a person holds a religious belief for the “proper” reasons. The inquiry should focus on the sincerity of the belief; not the motives or reasons for holding that belief in the first place.Continue Reading Help! We have had a major influx in religious accommodation requests from our mandatory vaccine policy

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