Task Force Guidance Mandates Employees Of Federal Contractors Receive The COVID-19 Vaccine
On September 24, 2021, President Biden’s Safer Federal Workforce Task Force issued guidance for federal contractors and subcontractors regarding mandatory COVID-19 workplace safety protocols (“Guidance”). The Guidance is based upon Executive Order 14042, which requires executive departments and agencies to ensure that covered contracts and contract-like instruments include a clause specifying that the contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force. Direct federal contractors and any subcontractors (at any tier) must incororate the clause into all lower-tier subcontracts. Although the actual wording of the clause to be included in covered contracts has yet to be released, it is expected on or about October 8, 2021.
Guidance Coverage
- Covered Contracts
The Guidance applies to any new contract, new solicitation for a contract, extension or renewal of an existing contract, and exercise of an option on an existing contract, if:
- It is a procurement contract for services, construction, or a leasehold interest in real property.
- It is a contract for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.
- It is a contract for concessions.
- It is a contract entered into with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.
- It is a subcontract at all tiers, except for subcontracts solely for the provision of products.
Although service contracts are clearly covered by the Executive Order, hybrid contracts, which are contracts for both the sale of goods and services, are also likely covered. For example, if a federal contractor manufactures goods, delivers the goods with its own personnel, and then services or repairs the goods after they have been delivered or installed, the contract likely is covered because it requires the contractor or subcontractor to supply goods and provide services. Federal contractors and subcontractors are cautioned to review their contracts to determine whether they meet the criteria for covered contracts.
- Covered Contactors
The Guidance applies to a prime contractor or subcontractor at any tier who is party to a covered contract. There is no exemption for small businesses.
- Covered Contractor Workplace Locations
The Guidance defines covered contractor workplace locations as a location where covered contract employees work, including a covered contractor workplace or federal workplace. Importantly, the Guidance also applies to contractor or subcontractor employees in covered contractor workplaces who are not working on a federal government contract. Covered workplace locations include outdoor work locations. While employees’ personal residences are not included in the definition of covered contractor workplace locations, employees working from home on or in furtherance of a federal contract must meet the Order and Guidance’s vaccination requirements.
- Covered Contractor Employees
Covered contractor employees include any full-time or part-time employee of a covered contractor “working on or in connection with” a covered contract or working at a covered contractor workplace. The term employees “working on or in connection with” covered contracts includes both employees working directly on covered contracts and employees who perform duties necessary to the performance of the covered contract but who are not directly engaged in performing the specific work, such as human resources, billing, payroll, and legal review.
Guidance Requirements
Covered contractors must ensure all covered contactor employees comply with the following three requirements:
1. Vaccination of Covered Contractor Employees: Covered contractors are required to ensure all covered employees are vaccinated for COVID-19 no later than December 8, 2021 (or by the first day of performance on a newly awarded covered contract, newly exercised contract, newly exercised option, or newly extended or renewed contract). Contractors are not required to provide onsite vaccinations to employees. There are limited exceptions to the vaccine requirement. One of the exceptions may require a covered contractor to provide disability or religious accommodations to covered contractor employees. Importantly, there is no opt-out provision for covered employees to submit to weekly testing as an alternative to vaccinations. Additionally, covered employees who have previously contracted COVID-19 are still required to be vaccinated and are not exempt from the vaccine requirement.
The other exception to the vaccine requirement is for contracts that fill an “urgent, mission-critical need.” Under this exception, covered employees may begin work before being vaccinated. However, federal contractors must ensure the employees are fully vaccinated within 60 days of beginning work on the contract or at a covered workplace.
Covered contractor employees must provide one of the following types of documentation to establish their vaccination status: (a) an immunization record from a healthcare provider; (b) a copy of the COVID-19 vaccination record card; (c) a copy of medical records documenting the vaccination; (d) a copy of immunization records from a public health or state immunization information system; or (e) a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine. Photos of vaccination cards or attestations from employees themselves are insufficient to establish vaccination status.
2. Masking and Physical Distancing Requirements: Covered contractors must ensure all individuals, including covered contractor employees and visitors, comply with published CDC guidance for masking and physical distancing at a covered contractor workplace. Disability or religious accommodations may be required, exempting covered contractor employees from the mask requirement. Covered contractors may make exceptions to the mask-wearing and/or physical distancing requirements consistent with CDC guidelines, such as allowing employees and visitors to remove their masks while actively eating or drinking and maintaining appropriate distancing.
a. Guidance for Fully Vaccinated Covered Individuals: Individuals who are fully vaccinated must wear a mask indoors in areas of high or substantial community transmission. In areas of low or moderate community transmission, fully vaccinated individuals do not need to wear a mask. Fully vaccinated individuals also do not need to physically distance themselves regardless of the level of transmission in the area.
b. Guidance for Individuals Who Are Not Fully Vaccinated: Individuals who are not fully vaccinated must wear a mask indoors and in crowded outdoor settings regardless of the level of community transmission in the area. To the extent practicable, non-fully vaccinated individuals should maintain a distance of at least six feet from others at all times, including in offices, conference rooms, and all other communal and workspaces.
3. Designation of a COVID-19 Coordinator at Covered Contractor Workplaces: Covered contractors must designate a person to coordinate compliance with this Guidance. The COVID-19 Coordinator must ensure the COVID-19 protocols are provided to covered contractor employees and all other individuals likely to be present at covered workplace locations. The designated individual may communicate COVID-19 protocols via email, websites, memoranda, flyers, or other means so long as they set forth the requirements in a readily ascertainable manner.
Timeline For Incorporating The COVID-19 Safety Protocol Clause
The Guidance provides for a phased-in approach for requiring the clause in covered contracts.
- For Contracts Awarded Prior To October 15 Where the Performance is Ongoing: the COVID-19 safety protocol clause must be incorporated at the point at which an option is exercised, or a renewal or extension is made.
- For Contracts Awarded Between October 15, 2021, and November 14, 2021: the clause must be included in the solicitation, and agencies are encouraged to include the clause in contracts awarded during this time period but are not required to do so unless the solicitation for such contract was issued on or after October 15, 2021.
- For Contracts Awarded on or After November 14, 2021: the clause must be incorporated into the contract’s terms.
Key Takeaways:
Contractors should begin by reviewing their current contracts to determine whether they will be subject to the new Executive Order. For example, procurement contracts for services, construction, or a leasehold interest in real property are subject to the Executive Order; however, subcontracts solely for the provision of products are not covered. Additionally, contractors should determine when they anticipate soliciting for new contracts, beginning work on new contracts, or extending, renewing, or exercising options for existing contracts. The timeline for incorporating the COVID-19 Safety Protocol Clause is a phased-in approach and varies depending on when the new contract is acquired or the existing contract is extended, renewed, or the option is exercised. In the short time since issuance of the Guidance, we have already seen communications from certain government executive agencies to prime contractors regarding executing a bilateral modification to their existing agreements in the coming weeks.
Covered contractors will also benefit from reviewing their current vaccination and COVID-19 protocols to ensure compliance with the Guidance. Because covered contractor employees must be fully vaccinated by December 8, 2021 (assuming the required contract language is inserted into an existing contract or new solicitation prior to December 8, 2021) and fully vaccinated is defined in the Guidance as two weeks after administration of the final dose of vaccine, now is the time to begin communicating the mandates of the Executive Order and Guidance with employees, evaluating the vaccination rate among covered employees, and encouraging vaccination for those who are willing and able to be vaccinated. It is also important to request and evaluate requests for religious or disability accommodations so that contractors can evaluate their staffing needs.
We will continue to provide updates as more information is issued relating to the Guidance. If you have any questions, please contact the authors of this Alert, Nancy Holt, partner in our D.C. office at nholt@fordharrison.com, Jill Harrison, partner in our Atlanta office at jharrison@fordharrison.com, both of whom are members of FordHarrison’s Affirmative Action/OFCCP and Government Contractors practice groups, or Erica Johnson, at ejohnson@fordharrison.com, associate in our Memphis office and member of FordHarrison’s Employment Law and Litigation practice groups. Of course, you can also contact the FordHarrison attorney with whom you usually work.
