Page 21 - COVID Executive Order Survival Guide Brochure

Second, as noted elsewhere in this Survival Guide, the term “subcontract” contemplates work that is necessary “for the performance” of a federal contract. If the work is not necessary for performance, we would argue the vendor is not a subcontractor. While we (obviously) believe professional service firms are important for all sorts of reasons, they usually are not necessary for performance of a specific federal contract. In contrast, if the federal contract cannot be performed without the support of the vendor, then the vendor very well may be a subcontractor.
Another way to think about it is to ask if you currently flow down any other federal contracting clauses (e.g., EO 11246, Section 889, etc.) to such vendors. If not, the -99 clause probably should be handled similarly.
My Employee’s Religious Accommodation Request Does Not Seem Religious At All – It’s More Personal, Can I Ask Follow-Up Questions?
The short answer is: Yes. Just recently, the EEOC provided further guidance as to the types of questions an employer may ask to determine if an employee’s religious beliefs are “sincerely held.” According to the EEOC, the sincerity of a religious belief is “largely a matter of individual credibility” and, as a result, an employer may consider the following factors:
• Whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance);
• Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons;
• Whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and
• Whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.
To weigh these factors, the EEOC explicitly has stated that an employer may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement.
Importantly, under the EEOC guidance, simply stating “I won’t let the government tell me what to do” is not enough to qualify for a religious accommodation under Title VII. The EEOC made clear that objections to COVID-19 vaccination that are based on social, political, or personal preferences, or on nonreligious concerns about the possible effects of the vaccine, do not qualify as “religious beliefs” under Title VII.
Do I Have To Provide The Same Accommodation To All Employees Seeking One?
No. The EEOC guidance is clear on this point – there is no “one accommodation fits all” solution. Each employee’s request must be assessed on an individual basis through an interactive process. If one particular employee can be accommodated through weekly testing and masking, it does not mean another employee can be accommodated in the same way or even that any reasonable accommodation exists for that other employee.
Further, when considering an individual accommodation request, the EEOC encourages employers to consider “whether exempting an employee from getting a vaccination would impair workplace safety.” In assessing accommodations as well as workplace safety, the EEOC has instructed employers to consider the following factors: the type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, and how many employees and nonemployees physically enter the workplace.
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EXECUTIVE ORDER 14042 SURVIVAL GUIDE | PAGE 21