On August 10, 2021, District of Columbia Mayor Muriel Bowser issued an order mandating COVID-19 vaccination certification requirements for DC government employees, contractors, interns and grantees. Mayor’s Order 2021-099 takes effect on September 19, 2021, and requires all employees and interns of DC government agencies to attest and “provide proof” that they have received a full course of a COVID-19 vaccination either approved by the FDA (as Pfizer’s vaccine was on August 23, 3021) or authorized for use on an emergency basis (currently Moderna or Johnson & Johnson), or qualify for one of the exemptions under Section III of the Order.
The Section III exemptions from vaccination certification require that the employee submit a request for exemption, provide information and documents needed to support the request, and the request must be approved by the employer. There are three possible exemptions:
Employees who object in good faith and in writing … that the employee’s vaccination would violate their sincerely held religious belief;
Employees who have obtained and submitted written certification from a physician or other licensed health professional who may order an immunization, that being vaccinated for COVID-19 is medically inadvisable as a result of the employee’s medical condition; and
Employees who agree to be tested weekly for COVID-19.
All employees who qualify for one of these exemptions must wear a mask in the workplace, even if current indoor masking orders are rescinded or superseded, and they must be tested weekly for COVID-19 and provide a negative test result on a weekly basis in order to report to work. Employees who are partially vaccinated would fall into this category as well, it appears, since there is no exemption for those who are awaiting a second dose of Pfizer or Moderna, or who have had all doses but 14 days have not elapsed since the final dose.
In addition to direct DC government employees, the Order impacts those contractors and grantees doing business with DC government agency or under contracts with the government. Those contractors and grantees must ensure that each of their “employees, agents and subcontractors” who provide goods or perform services in DC facilities or worksites, or who have in-person contact with other persons in order to complete their work under the contract or grants have been either: (i) fully vaccinated against COVID-19, or (ii) granted one of the exemptions identified in Section III of the Order, are undergoing weekly COVID-19 testing AND only reporting to the workplace when such test result is negative, AND are wearing masks while working.
The contractor/grantee section does not limit masks to indoor work environments for all who are not fully vaccinated. Existing contracts will be amended to include this requirement, and failure of contractors to adhere to the requirements “may result in adverse action” according to the Order. Contractors and grantees may be required to provide written certification to the DC government to prove compliance with the vaccination and masking requirements. Nothing precludes having stronger vaccination requirements or mandated, subject to applicable laws.
Currently, the EEOC says that employers can mandate COVID-19 vaccinations, and the new FDA approval of the Pfizer vaccine will only strengthen this legal position. The Mayor’s Order does not address booster shot regimes at this time, although the federal government has now recommended boosters for all adults who are 8 months or more beyond their final dose, due to the diminishing effectiveness over time against some recent variants. For more information on the DC Order or other COVID-19 program requirements for employers and contractors, contact Adele Abrams at safetylawyer@gmail.com.
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