If You Do Business With the Federal Government, it May Be Time for Your Unvaccinated Employees to Roll Up Their Sleeves

Foley & Lardner LLP

Foley & Lardner LLPIf your company does business with the federal government or subcontractors of the federal government, you may have to require that your employees become fully vaccinated against COVID-19 by December 8, 2021.

On September 9, 2021, President Joe Biden is issued various executive orders designed to take further steps to fight the war against the COVID-19 pandemic. One of these executive orders, EO 14042, requires executive departments of the federal government to include in their contracts and “contract like instruments” “a requirement that all covered contractor employees be vaccinated.”  

The September 9 Executive Order indicated that specific guidance on implementation would come from the Safer Federal Workforce Task Force (STWTF), a committee created to provide direction and guidance to federal government agencies to take in protecting their workers from COVID-19.

On September 24, 2021, the SFWTF issued more detailed guidance. While confusing, the guidance does provide some further direction to federal contractors and subcontractors. 

Covered contractors must ensure that all covered contractors’ employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation (see further discussion below). While it is not entirely clear from the guidance, the safer approach is to assume that current contractor employees must be fully vaccinated no later than December 8, 2021. This means companies may want to operate as though the requirements are effective for their existing covered contracts and not just new contracts.  Thereafter, covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded contract. The guidance states that even covered employees who work remotely must be vaccinated.

Each contract or “contract like instrument” issued by executive departments must have “the clause” in their agreements with contractors and subcontractors at any tier. The definition of what type of business relationships trigger coverage is extremely broad and not only includes traditional procurement contracts, but such relationships as “any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing.” The term contract includes contracts covered by the Service Contract Act; contracts covered by the Davis-Bacon Act; concessions contracts not otherwise subject to the Service Contract Act; and contracts in connection with federal property or land and related to offering services for federal employees, their dependents, or the general public. Employers who are covered by such contracts and contract like instruments must, for the duration of the contract, comply with all of the guidance issued by the SFWTF.  Notably, contracts for products are not covered.

The workplace protocols issued by SFWTF will apply to all covered contractor employees in workplaces with individuals working on or in connection with the government contract or subcontract, regardless if these employees themselves directly work on the covered contract. Covered contractors must designate a person or persons to coordinate COVID-19 workplace safety procedures and compliance with the executive order. 

Covered contractors must review employees’ proof of vaccination by inspecting specified forms of documentation that include a copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r), a copy of medical records documenting the vaccination, a copy of immunization records, among others.

In keeping with existing antidiscrimination laws, a covered contractor may be required to provide an accommodation to covered contractor employees who state that they are not vaccinated against COVID-19 because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance.

The SFWTF also mandates current CDC guidance on masking be followed by covered contractors. Therefore, in areas of high or substantial community transmission, fully vaccinated people must wear a mask indoors, except for limited exceptions. In areas of low or moderate community transmission, fully vaccinated people are not required to wear a mask. Individuals who are not fully vaccinated must wear a mask indoors and socially distance (six feet) as well as mask in certain outdoor settings regardless of the level of community transmission in the area.

Noticeably absent from the SFWTF guidance is a testing option in lieu of vaccination. In other words, vaccination is the only means for compliance. Covered contractors will need to watch carefully for any alerts or amendments to their existing contracts that may come from their contracting agency. Covered contractors should also take an immediate deep dive into the SFWTF’s guidance to insure timely compliance.

It is important to note that the requirements of this Executive Order are separate from an anticipated emergency rule from OSHA requiring vaccination or regular testing for all employees of employers with 100 or more employees, and a forthcoming Final Interim Order, expected in October, from CMS which will require vaccines for workers in most health care settings that receive Medicare or Medicaid reimbursement including hospitals and nursing dialysis facilities, among others.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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