As federal contractors scramble to comply with President Biden’s September 2021 Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, these employers must keep in mind the ever-present risks posed by non-compliance with such requirements. Determining if your company is a contractor that must comply with the vaccine mandate imposed by this Executive Order, is no easy feat. What happens if you decide you are not covered but an employee or other interested party thinks differently and wants to “blow the whistle?” Such a scenario could make your company the target of a whistleblower complaint under the False Claims Act (FCA). If it turns out the whistleblower was right you are covered and you were wrong, it could lead to civil liability or criminal prosecution.
Federal contractors are likely already familiar with the FCA, which imposes liability on companies who knowingly submit “false” claims to the federal government. Of course, liability under the FCA is not automatic, and significantly, there can only be liability under the FCA, if the non-compliance is “material” to the government’s payment. Materiality in FCA cases is dependent on a variety of factors, including how government agencies deal with non-compliant contractors.
The intense publicity around the issue of vaccine mandates makes this an attractive potential tool for whistleblowers or qui tam relators, who stand to receive a substantial “bounty” for successful claims. However, the...
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