ANALYSIS: A CUNA legal analysis finds that financial institutions are not federal contractors, by virtue of their federal share or deposit insurance, for purposes of:
- President Biden’s Executive Order 14042: “Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees,” issued on September 9th, or
- The Safer Federal Workforce Task Force (Task Force) “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors,” issued on September 24th.
The League provided an introduction to Executive Order 14042 and an OSHA vaccination mandate in this September 10, 2021 Compliance Courier: Vaccine mandates include “federal contractors,” large employers.
The CUNA analysis, Task Force Issues Guidance for Federal Contractors Vaccine Mandate, is posted on its Compliance Community Blog.
Over the years, various executive orders have been issued that affect federal contractors. But just who is a federal contractor can vary from one executive order to the next. CUNA states:
Neither Executive Order 14042 nor the Task Force guidance clarify that financial institutions with federal share and deposit insurance are included in the term “federal contractors.” Therefore, until there is additional guidance such as regulations implementing Executive Order 14042 or guidance from NCUA, there is nothing to state that credit unions are federal contractors for purposes of Executive Order 14042.
At the same time, CUNA cautions that the vaccination mandate could apply to some credit unions engaged in other activities with the federal government:
The mandate likely does apply to credit unions that have contracts in connection with Federal property or land and related to offering services for Federal employees, their dependents, or the general public, since the Task Force guidance defines the term “contract” to include “all contracts and any subcontracts of any tier thereunder, … including lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements… whether entered into verbally or in writing.” The term contract shall be interpreted broadly.
CUNA indicates:
Such credit unions would have to look to their contract with the federal agency to determine if they are considered a “contractor” for whatever service or agreement is in place between the agency and the credit union. So, if a credit union has rent free space at a federal building, the contract for that space would likely define the relationship between the credit union and the agency.
The Task Force guidance says that federal contractor employees covered by the rules who are not entitled to exemption “must be fully vaccinated no later than December 8” and adds that after that date for future contracts employees must be vaccinated by the first day of performance on a new or extended contract.
Occupational Safety and Health Administration (OSHA) vaccination mandate
OSHA has been directed to develop a plan that will require all employers of 100 or more employees to make sure employees are fully vaccinated or taking a weekly COVID-19 test before entering the workplace. The NCUA website reveals approximately 21 Wisconsin credit unions with 100 or more employees as of June 30, 2021.
CUNA comments:
Regarding the OSHA ETS for employers with 100-plus employees, the Department of Labor will issue an Emergency Temporary Standard requiring employers with more than 100 workers to have them inoculated or tested weekly. This policy is expected to cover more than 80 million workers. We will have to wait for the OSHA standards to see precisely what is going to be required of larger employers beyond the state mandates. Secretary Gina Raimondo said that rule would be released in October.
CUNA intends to provide updated information as additional guidance is released on these matters.