As contractors and agencies scramble to comply with the vaccine mandate of government contractors, there appears to be growing confusion over whether contractors or federal agencies are responsible for assessing whether employees of contractors working on government sites are entitled to medical or religious accommodations. In some cases, agencies tell contractors that the government, not the contractor, is responsible for deciding accommodation requests. In others, agencies require to see the rationale for accommodation determinations and to independently assess those determinations.
This confusion is regrettable because it is clear that the entrepreneur, and not the government, is responsible as an employer. To the extent that agencies usurp the contractors’ obligation to make these decisions, the government increases the likelihood that it will be considered a joint employer, unnecessarily exposing both the government and the contractors to potential liability.
Employers are responsible for making accommodation decisions
For decades, employees have had the right to request medical accommodations under the Americans with Disabilities Act (ADA) and religious accommodations under Title VII of the Civil Rights Act of 1964. These requests have always been submitted. to their “employer” even when these employees are working at an offsite location.
This is consistent with the guidelines of the Safer Federal Workplace Task Force which sets out the obligations related to COVID-19 applicable to contractors subject to the new FAR clause or DFARS explains:
Q: Who is responsible for determining whether an employee of a Covered Contractor should receive an accommodation because of a disability or because of a sincere religious belief, practice or observance?
A: A Covered Contractor may be required to provide an accommodation to Contractor’s employees who communicate to the Covered Contractor that they are not vaccinated against COVID-19, or that they cannot wear a mask, by because of a disability (which would include medical conditions) or because of a sincere religious belief, practice or observance. A covered contractor should review and consider the accommodations, if any, that they have to offer. The Contractor is responsible for reviewing and disposing of such accommodation requests regardless of the location of performance of the covered Contractor’s employee. If the agency that is the party to the covered contract is a “co-employer” for the purposes of compliance with the Rehabilitation Act and Title VII of the Civil Rights Act, the agency and the covered contractor must review and consider what, if any, accommodations they have to offer.
Is the government a joint employer?
The task force notes that the only time an agency plays a role in an accommodation decision is when an agency is a “co-employer”. This situation is not typical in the context of public procurement, nor is it desired. If an agency is a joint employer, it means that the government and the contractor would be responsible for the inappropriate denial of an accommodation request.
Although there is no single criterion for determining co-employer status under ADA or Title VII, the various tests used by the courts analyze factors based on the common law principles of the agencies. indicating the degree of control, economic realities or a combination of factors based on all of the circumstances.
Additionally, the Fair Labor Standards Act employer joint test flow has been the subject of recent regulatory action, as the Trump administration issued a final rule that came into effect on March 16, 2020, which limited the situations in which an entity could be considered to be a joint employer. This rule was repealed by the Biden administration, originally effective October 5, 2021, reinstating the various individual circuit court tests used by courts to determine whether a party is a joint employer.
The risk that the government would be seen as a joint employer and therefore become liable to prosecution by contract employers was discussed in detail over a decade ago by Professor Steven Schooner of GW Law in this excellent article published in The Government Contractor. The article examines the developments that led to the blurring of the line between civil servants and contract workers and the risks that government becoming a joint employer poses to both government and contractors.
To the extent that the agencies assume the responsibility of assessing accommodation requests from the contractor’s employees, which is the employer’s responsibility, they expose the government to the risk of lawsuits by the contractor’s employees for discrimination in employment, unfair dismissal and lack of accommodation, among other actions for employment. As Professor Schooner noted, it also increases the risk for contractors to the extent that an agency views them less favorably because their employees sue the government.
Contractors should also keep in mind that as joint employers with the government, they could become responsible for government misconduct. For example, suppose the government wrongly denies a contractor’s employee request to be exempted from the vaccination mandate due to a health problem. In this case, the employee could sue the contractor.
Key takeaways for government contractors
In summary, allowing agencies to usurp the contractor’s responsibility to make decisions about medical or religious accommodation will likely result in government liability that would not otherwise exist and a contractor’s loss of control over a decision that he will take responsibility.
So, if an agency your company does business with feels that the government, and not your company, should rule on accommodation requests, politely explain that by assuming this responsibility, it creates a potential government liability that does not exist. otherwise. If this is not enough, it would be prudent to independently assess any request for religious or medical accommodation and to raise any disagreements regarding decisions with the contracting officer.