WASHINGTON — The Pentagon will only enforce the vaccine mandate for federal contractors in certain cases, Defense News has learned, in line with an overlooked detail of the Biden administration’s executive order.
The mandate for workers to be fully vaccinated against COVID-19 will — for now — only apply to contracts for services or real property construction, not contracts for manufacturing goods such as ships, aircraft, vehicles and weapons.
Since the White House released a pair of executive orders in September mandating vaccines for federal employees and contractors, many defense contractors have begun efforts to get employees vaccinated either voluntarily or under threat of termination.
But the executive order says the mandate will be applied to new contracts, extensions, renewals and modifications if “it is a procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property.” It does not include a procurement contract for goods. The order later states it does not apply to “subcontracts solely for the provision of products,” but does not mention prime contracts for products.
A defense official told Defense News the White House and the Office of the Secretary of Defense set the policy and implementation guidance on contractor vaccines, including which types of contracts are covered by the executive order. Each of the military branches follows that guidance.
At this point, the military only considers service and military construction contracts covered by the order and the implementation guidance. Each contract has a product service code, and those coded as “service” will be modified to include a clause on the vaccine requirement; those coded as “supply” — including ship construction, ship repair, weapons procurement and more — are not being modified at this time.
Individual companies, of course, may choose to mandate vaccines for their employees regardless of how OSD and the White House choose to enforce the executive order.
Huntington Ingalls Industries raised eyebrows on Nov. 16 when it announced it would no longer require its workers to be vaccinated. Previously, the company, which owns two of the largest shipbuilding and repair yards the Navy works with, had said its workers would have to be vaccinated by Dec. 8 or leave the company, in line with the original timeline of the mandate that has since been pushed back to Jan. 4.
“While Huntington Ingalls Industries is a publicly traded company, we are a federal contractor because we provide services to our military and government customers through federal contracts. For that reason, we are bound by any regulations, policies and contractual provisions that apply to all federal contractors,” reads a Sept. 24 memo from Mike Petters, the company’s chief executive.
In a follow-on Sept. 29 memo, Chris Kastner, HII’s chief operating officer, wrote that while the company is “discussing the effects of this mandate with our union partners, it will be a condition of continued employment for our workforce to be fully vaccinated by the above date.”
HII told Defense News on Nov. 19 it had since determined that the mandate did not apply to its shipbuilding contracts because they were not for services, in line with what the defense official described as OSD implementation guidance.
OSD, asked about HII’s interpretation of the executive order, deferred questions to the Navy.
Navy spokesman Capt. Clay Doss told Defense News, “While we will not comment on an internal industry memo, we can say the Department of the Navy continues to work with our industrial base to modify covered contracts to comply with White House and DoD guidance on contractor vaccinations.”
Unlike HII, some other shipbuilding companies never set a deadline for their shipyard workers to get vaccinated.
General Dynamics, which owns three shipyards, has taken an incentives-based approach. Electric Boat in Connecticut has offered a $500 bonus to employees who receive their final shot by Jan. 4. At Bath Iron Works in Maine, vaccinated employees will get Dec. 23 as an additional paid holiday. And at NASSCO in California, as well as the other two, vaccine clinics and other resources are being made available to employees to make the vaccination process as easy as possible.
General Dynamics has not issued any statements to the shipyards’ workforces regarding deadlines to get vaccinated.
A company spokesman told Defense News that General Dynamics is collecting but not yet processing requests for exemptions from the vaccine mandate. If the government applies the mandate to contracts such as those for ship construction, the company would then begin processing the waiver requests and working with the remaining unvaccinated workforce to get as many as possible to comply.
The spokesman also noted some individual personnel are asked to do jobs at naval public shipyards, for example, or other government facilities. Those individuals would have to be vaccinated to be allowed to work at a government facility.
General Dynamics CEO Phebe Novakovic said in an Oct. 27 earnings call the mandate does apply to other contracts in the company. As a result, other business lines must follow the vaccine mandate at this time.
“As a federal contractor, we are covered by the executive order on the mandate. The corporate office mandate has been fully executed. Two of our largest businesses are in the process of executing the mandate,” she said, referring to General Dynamics Mission Systems and General Dynamics Information Technology. “Many others are set to implement accordingly. And because of our customer, operational and geographical diversity of many of the businesses, we are working with our customers as contract modifications are received that could trigger an implementation. So we keep a pretty running tally.”
Other contractors had little to say when contacted by Defense News about whether HII’s stance might prompt them to change how they weight vaccine mandates, although some said they are considering employees’ requests for exemptions.
Lockheed Martin pointed to its previous public statements, in which the company said it continues to follow the federal government’s requirement for contractors and subcontractors with a covered contract to become fully vaccinated, except for limited cases in which an employee has an eligible accommodation.
Northrop Grumman spokeswoman Laura Chon said the vaccine mandate is a federal requirement, one which the company is required to follow as a federal contractor.
And L3Harris Technologies said it is taking steps to fully vaccinate its workforce, while considering requests from employees seeking exemptions “with care and prompt attention.”
Joe Gould and Stephen Losey contributed to this report.
Megan Eckstein is the naval warfare reporter at Defense News. She has covered military news since 2009, with a focus on U.S. Navy and Marine Corps operations, acquisition programs, and budgets. She has reported from four geographic fleets and is happiest when she’s filing stories from a ship. Megan is a University of Maryland alumna.