Legal Alert: D.C. Government Mandates COVID-19 Vaccine for Some Nonprofit Contractors and Grantees

In August 2021, the D.C. mayor issued Order 2021-099 requiring all D.C. employees, interns, contractors, and grantees to ensure that their personnel are either vaccinated against COVID-19 by September 19, 2021 or eligible for a vaccine exemption under the Order.

In addition to your employees and subcontractors, nonprofit interns, volunteers, and independent contractors are all potentially within the scope of the Mayor’s Order.

Applies to D.C. In-Person Services Only

The vaccine requirement applies to individuals who “provide goods or perform services in-person in District of Columbia facilities or worksites, or who have in-person contact with other persons to complete their work under” a D.C.-funded grant or contract.

Under the language of the Order, workers who provide no in-person services in D.C.—including workers who spend 100 percent of their time working outside of D.C. or 100 percent of their time working remotely from home with no in-person contact—are likely not covered by the vaccine mandate.

Applies Only to D.C.-Funded Work that is “Regularly Directed” by D.C. Employees

A subsequent memorandum from the City Administrator (last updated September 8, 2021) clarified that the vaccination requirement only applies to contractors and grantees that (a) provide services at District government facilities or (b) whose work “is regularly directed by District government employees and who have in-person contact with other persons in order to complete their work under the contract or grant.”

• The City Administrator noted that the latter “regularly directed” requirement means that “non-profit organizations that receive grants from or through District government may be exempt [from the vaccine requirement] if the extent of their interaction with the government is to receive and report on the use of those funds, but otherwise are not operating regularly as an extension or agent of the government.”
• On the other hand, grantees will be subject to the vaccine mandate if their in-person work is in fact “regularly directed by District government employees,” such as grantees under the COVID-19 Community Corps.

Exemptions from the Vaccine Mandate

Even for covered workers, the Order provides an exemption from the vaccine mandate in the following circumstances:

1. Test-Out Option: Vaccination is not required under the Order for workers who submit to weekly COVID-19 testing and wear a mask in the workplace.
2. Religious Exemption: Vaccination is not required under the Order for workers that have certified, in writing, a good-faith objection that the vaccination would violate their sincerely held religious beliefs, and who submit to weekly testing and wear a mask in the workplace; and
3. Medical Exemption: Vaccination is not required under the Order for workers that have obtained and submitted a certification from a licensed health professional that the vaccination is medically inadvisable due to their medical condition, and who submit to weekly testing and wear a mask in the workplace.

Effect on Nonprofit Organizations

D.C. nonprofits that receive either D.C. government grants or contracts—and whose work under those grants/contracts is “regularly directed” by D.C. employees to the extent that they are acting as an “agent or extension” of the D.C. government—are affected by the District’s new vaccine mandate.

Affected nonprofits should assess whether any of their employees, interns, volunteers, agents, and/or subcontractors provide in-person services at D.C. facilities or have in-person contact in the course of performing their D.C.-funded work. Individuals that do must be vaccinated or meet one of the Order’s exemptions in order to continue working on D.C.-funded projects.

The Order noted that affected nonprofits are proactively responsible for ensuring compliance with the Order and should be able to provide proof of vaccination, exemption documentation, and/or COVID-19 test results for affected workers to D.C. government officials upon request.

While the Order itself did not outline a more specific process for attaining or certifying compliance, it did give the City Administrator, the Office of Contracting and Procurement (“OCP”), and individual D.C. grantmaking/contracting agencies the power to add more specific compliance requirements to both existing and future grants/contracts. Affected nonprofits should therefore pay close attention to any future communications from their partner agencies regarding more specific certification and/or compliance requirements.

Finally, the Order explicitly notes that it does not prevent contractors or grantees from voluntarily imposing stronger vaccination requirements on their employees, agents, or subcontractors, subject to applicable federal and local laws and regulations.

Other Vaccine Mandates Affecting Nonprofits

In addition to the Mayor’s order affecting D.C. contractors and grantees, a number of other local and federal vaccine mandates may also apply to nonprofits. For example, D.C. has enacted strict vaccine mandates for both licensed and unlicensed healthcare workers and for adults working or volunteering within D.C. schools and OSSE-regulated childcare centers. At the federal level, the Biden administration has incoming vaccine requirements for federal contractors and for employers with over 100 employees that will affect many nonprofit organizations.

Additional information for nonprofits and small businesses is available at the D.C. Bar Pro Bono Center’s resource website: www.lawhelp.org/dc/NPSB.

If you have questions feel free to contact us at npsb@dcbar.org.

© D.C. Bar Pro Bono Center 2021

This communication is provided by the D.C. Bar Pro Bono Center solely for informational purposes, without any representation that it is accurate or complete. It does not constitute legal advice and should not be construed as such. It does not create an attorney-client relationship between the recipient and any other person, or an offer to create such a relationship. This communication contains information that is based, in whole or in part, on the laws of the District of Columbia and is current as of the date it is written. However, laws vary from state to state and may change from time to time. As a result, the information may not be appropriate for anyone operating outside the District of Columbia and may no longer be timely. Consult an attorney if you have questions regarding the contents of this communication.