HPE joins IBM in threatening unvaccinated workers with unpaid leave

Biden's rules for federal contractors leave little wiggle room when it comes to vaccine mandates.

HPE campus

As a federal contractor, HPE faces a strict vaccine mandate.

Photo: Allison Levitsky/Protocol

Hewlett Packard Enterprise just made its employee vaccine mandate tougher to dodge.

The IT company told its workforce on Wednesday afternoon that the COVID-19 vaccination is now a "condition of employment" at HPE, even for remote workers.

That's a change from when HPE initially announced the mandate in August, when it told workers they could opt out of vaccination by getting tested regularly or working from home.

Why the crackdown? As a federal contractor, HPE faces tougher restrictions than other large companies under the executive order that the White House released in September.

IBM realized this and took action earlier this month, telling employees they will face unpaid leave if they remain unvaccinated. General Electric, Union Pacific, Boeing and Raytheon Technologies have also announced vaccine mandates.

"The federal mandate is super strict," said Aaron Goldstein, a partner at the law firm Dorsey & Whitney. "If there's a single person in a workplace who is working directly or indirectly on a federal contract, that whole workplace needs to be vaccinated."

Federal contractors have until Dec. 8 to comply with that order. After that point, like IBM, HPE will place any employees who don't prove they're vaccinated or qualify for a medical or religious exemption on unpaid leave.

A major distinction between the vaccine mandates facing federal contractors and other large private employers is that employees of federal contractors can't dodge the vaccine mandate by getting tested regularly.

Other private employers with 100 or more employees will need to mandate either vaccination or regular testing, though they're still waiting on the Department of Labor's Occupational Safety and Health Administration to release more details on what will be required.

In practice, this may not affect too many employees. More than 80% of HPE employees have already uploaded proof of vaccination.

HPE Chief People Officer Alan May expects that "many" others haven't yet done so because they work from home and haven't been planning to return to the office anytime soon.

Who is covered by these rules?

There are some massive companies on federal contracts, and not all of their employees do work for the government. That can make it tough to know how strict vaccine mandates need to be — and which employees they cover.

"The test-out option has never been in dispute," HPE spokesperson Adam Bauer told Protocol. "The question is to whom does that apply."

Goldstein, who specializes in employment and trade-secret matters, said the government's vaccine mandate rules touch so many employees, "it's almost like an epidemic itself, who it applies to."

Beyond the employees working directly on a federal contract, even workers providing administrative services to employees on a federal contract — an HR professional, for example — are required to get vaccinated as "covered employees," Goldstein said.

In addition to covered employees, federal contractors now have to discern whether they have a "covered workplace."

That means any office — maybe even any campus, Goldstein said — with employees working on a federal contract is covered by Biden's federal contractor vaccine mandate, unless non-contractor employees are in their own building and don't receive any administrative services from workers who also support employees on a federal contract.

For HPE and IBM, it likely just made more sense to apply the federal contractor rules across the board.

When do these rules kick in?

Last Friday was the deadline for federal agencies to include their vaccine mandates in contracts, and employees have until Dec. 8 to get vaccinated. But contractors have generally been more proactive now that they know what's required.

"I think federal contractors have realized they really don't have time to wait to get compliant until they get a letter," said Goldstein. "If you're going to be a federal contractor in the year 2022, you're going to need to be complying with this mandate."

Companies on federal contracts worth less than $250,000 aren't subject to the mandate, but Goldstein said some federal agencies are going beyond what the White House requires and even including vaccine mandates in small contracts.

"It's really hard to think of any loophole or way out of that," Goldstein said.


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