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Are Banks Required to Comply with the Federal Contractor COVID-19 Vaccination Mandate?

Vaccination Card

By Jennifer Mirus, Boardman Clark, a WBA Gold Associate Member

On September 24, 2021, the Biden Administration released guidance regarding the scope of Executive Order 14042 which mandates that employees of covered federal contractors demonstrate proof of full vaccination against COVID-19 by December 8, 2021That guidance is available here.

The guidance lists several categories which, if applicable to an employer, will trigger its obligation to ensure its employees have been fully vaccinated. The guidance defines “contract” broadly to include: “all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing.” 

This broad guidance left certain questions unanswered regarding which entities qualify as a covered federal contractor. Notably, it is unclear whether banks are considered federal contractors due to their FDIC relationship with the federal government. Because the guidance is written in broad terms, it could be construed to mean that banks are considered federal contractors because they obtain a “service” from the federal government in the form of FDIC insurance and thus have a “service agreement” for the purposes of the vaccination requirement. However, this is a very literal reading of the guidance which may not be how the Executive Order and guidance are intended to be interpreted. Additionally, an earlier executive order regarding minimum wage used a similar definition of “contract,” and there is no clear guidance or rulings that banks were subject to that order.  

Thus, at this time, it is a reasonable conclusion that banking institutions are not covered federal contractors that must comply with the vaccination mandate. More guidance and clarification will be needed before it is clear whether banks are considered federal contractors under the Executive Order.  Banks that have explicit contracts with the federal government likely do qualify as federal contractors, even if they are not federal contractors by virtue of FDIC programs.  

Banks with 100 or more employees might be subject to the anticipated emergency temporary standard under the Occupational Health and Safety Administration (OSHA) that will require COVID-19 testing or vaccination. Details on OSHA’s standard are anticipated in the near future.