It’s Time to Apply Risk Management to President Biden’s Vaccine Mandates

‘By the authority vested in me as President by the Constitution and the laws of the United States of America, including sections 3301, 3302, and 7301 of title 5, United States Code, it is hereby ordered as follows....”

Why do these words make me cringe? Well, because when presidential ink hits paper, all the ramifications get real. All the things that make for healthy debate become regulations that impact our businesses on a daily basis—and in a big way. Today, I’m talking about President Biden’s vaccine mandates or executive orders.

It’s already well known that President Biden’s “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors,” aka Executive Order 14043, requires all “federal workforce and individuals interacting with the federal workforce” to be fully vaccinated by Nov. 22, 2021. This is the first of two executive orders (EO) signed on Sept. 9, 2021.

The second mandate is the “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors,” or EO 14042. The fallout from that declaration will soon—as in Dec. 8, 2021—transform from media fodder into cold hard facts for literally millions of U.S. workers.

Which begs the following question. It’s not about how the Biden administration is handling the response to the pandemic, or the fact that the EOs don’t apply to congressional or judicial branch workers. No, my question is simply this: Will these mandates apply to you and your employees?

Employees in the vaccine-mandate crossfire

U.S. employers—and possibly foreign contractors and subcontractors—must assess their legal responsibilities in light of these new executive orders. Although no specific penalties for noncompliance have emerged as of this writing, repercussions for noncompliance could be disastrous for lucrative federal contracts.

Although the orders themselves give only the broad-brush view, the details are farmed out to the Safer Federal Workforce Task Force. According to the task force’s “Guidance for Federal Contractors and Sub Contractors” and “Memorandum for Heads of Executive Departments and Agencies,” all workers covered by “contract and contract-like” arrangements are subject to the mandate.

Scott Warrick is a practicing employment law attorney, human resource professional, and best-selling author with 40 years of hands-on experience. Many of Warrick’s clients and associates are, and will be, caught up in the nets of these EOs.

When discussing which employees are going to be included in vaccine mandates, Warrick uses a fishing analogy.

“Think of it as an angler who is fishing, and he has four different buckets for each kind of fish he catches,” postulates Warrick. “The first bucket of fish/employees are the federal workers. The second bucket is for federal contractors and subcontractors.”

The mandate for contractors and subcontractors throws a wide net. How aggressively it will probe into the subcontractors’ realm is a risk management concern for many organizations employing millions of workers.

“A good example of who gets caught in the contractor EO would be an organization like the J. M. Smucker Co.,” explains Warrick. “Apparently, Smucker’s makes jelly that is sold to the military.”

From a risk management viewpoint, company leaders must determine if they have employees working on products sold to the military. Will those employees fall under the subcontractor clause? Obviously, this concern is relevant for all companies supplying products or services to any federal institution as well as subcontractors to those federal suppliers.

“The third bucket is anybody who receives Medicare or Medicaid funding,” says Warrick. “That stipulation includes every medical institution in the country—and all their employees.”

Further digging through the president’s “Path Out of the Pandemic” reveals how encompassing the reach of the EOs will be. A quick rundown of organizations and workers that must be vaccinated or regularly tested includes:
• All Centers for Medicare & Medicaid Services
• All organizations receiving Medicare/Medicaid funding
• Contractors and subcontractors of any federal facility or organization, including:
—Military
—Veteran’s Administration
—U.S. Postal Service
—Federal Aviation Administration

“These first three buckets represent some 80 to 100 million employees,” says Warrick. “That’s roughly 64 percent of the American workforce.”

And that’s just the executive orders, but the plan doesn’t stop there. There’s one more bucket waiting in the wings.

“The fourth bucket of [people covered by vaccine mandates] is coming by way of emergency OSHA regulations,” explains Warrick. “Any employer with more than 100 employees will be covered in this fourth bucket.”

Now, add the companies with 100-plus employees to the number of federal employees, contractors and subcontractors, teachers, and employees of facilities receiving Medicare/Medicaid funding, and the number of people affected is staggering. If your company doesn’t fall into one of the buckets, it may fall into another.

It’s also incumbent on employers to stay abreast of state and local vaccine regulations.

A note for employers to remember: Employers of the people covered will be required to deploy programs to both “inform employees” of requirements and to “verify, record, and report compliance.” No doubt there will be a certain amount of resistance from employees that will add to the ongoing struggle to maintain an adequate workforce.

So, the imminent question remains: Does your company and its employees fall into any of these groups? If so, what steps are you taking to ensure compliance and mitigate noncompliance risk factors? Addressing these questions may be the most important thing you do for your business this entire year.

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