Mandatory Vaccination Rule Casts A Very, Very Wide Net Over Federal Concessioners

Your Government counsel.™

If you thought the recent mandate for employees of federal concessioners and their subcontractors to be vaccinated, masked and socially distancing only applied to existing concession authorizations and to employees working in a National Park or Forest, think again.  The mandate in fact can apply to existing contracts as well as new ones.  In addition, it can extend to concessioner employees who never set foot in a park or forest much less meet with any federal employees no matter where those employees are located.  It can also apply to all the employees of subcontractors used by the concessioner.  While no one yet knows how this mandate will be enforced, it’s important to at least know what the potential impacts could be to your operations.

Application to both new and old concession authorizations

The mandate stems from Executive Order 14042 which was issued on September 9, 2021.  That EO required federal agencies such as the National Park Service (NPS) and US Forest Service (Forest Service) to ensure that their new concession authorizations required concessioners and their subcontractors to adhere to the guidelines published by the Safer Federal Workforce Task Force (Task Force Guidance).  It also “strongly encouraged” agencies to require compliance under existing authorizations as well.  In response to that guidance, NPS is now intending to require that concessioners operating under both new and existing concession contracts comply with the Task Force Guidance.  The Forest Service has stated that it will not require existing permits to comply with the vaccination mandate unless those permits are extended or an option is exercised after October 15, 2021.  The agency noted that other modifications to the permit do not trigger the vaccine requirement.

Application to potentially all employees of a concessioner and its subcontractors no matter where they are or what they do

The mandate can potentially apply to any employees of the concessioner anywhere.  The mandate not only applies to employees working directly on the operations authorized by the authorization, it also applies to employees working “in connection with” the concession operations.  “In connection with” includes employees who perform duties necessary to the performance of the contract, such as human resources, billing and legal review.  And if any of the above employees work in a concessioner’s building or group of buildings, all of the concessioner’s employees in those buildings must comply with the mandate if the employee could come in contact with the other occupants of the buildings.  In addition, the mandate also has the same application to qualifying subcontractors and their staffs as well including staff who work in the subcontractor’s offices.

Designated mandate coordinator

In addition, the mandate requires a covered concessioner to designate a person to coordinate the implementation of all of the Guidance.  This includes ensuring employees are notified of the requirements as to vaccination, masking and social distancing.  It also includes ensuring concessioner employees comply with the requirements for providing proper vaccine documentation.

The questions still out there

The full impact of the mandate is still very much being determined.   There are questions as to what the terms of the clauses to be included in concession authorizations will be.  It is also not certain which subcontractors are subject to the mandate.  We will keep you posted as these issues are hopefully clarified in the coming weeks.

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