As directed by President Biden’s September 9, 2021 Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” today the Safer Federal Workforce Task Force issued workplace safety guidance (“Guidance” or “Task Force Guidance”), including definitions, explanations, and exceptions, covering federal “contractor and subcontractor workplace locations and individuals in those locations working on or in connection with a Federal Government contract or contract-like instrument.”
The Task Force Guidance delineates protocols “in addition to any requirements or workplace safety protocols that are applicable because a contractor or subcontractor employee is present at a Federal workplace,” including:
- COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;
- Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces; and
- Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.
The Task Force Guidance attempts to clarify EO 14042’s scope by defining a number of terms whose definitions have been the subject of heated debate.
- Covered contracts include any contract or contract-like instrument incorporating the clause described in section 2(a) of EO 14042.
- This reinforces our prior supposition that federal contractors have to follow the Task Force Guidance only after contracting agencies insert the clause obligating compliance into new contracts, solicitations, or renewals after October 15, 2021.
- The Guidance reiterates that contract and contract-like instrument has the same meaning included in the Department of Labor’s proposed rule, “Increasing the Minimum Wage for Federal Contractors,” and notes that if the definition changes when DOL issues its final rule, the Guidance will adopt the final rule’s definition.
- Covered contractors are prime contractors or subcontractors at any tier who are party to covered contracts. Employees of those contractors are covered, whether full- or part-time, if they are “working on or in connection with a covered contract or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.”
- This means individuals who are not working on a covered contract would nonetheless be covered if they are working at a covered contractor workplace. Further, Question No. 17, included with the Task Force Guidance, takes a broad approach to working on or in connection with a covered contract, explaining: “Employees who perform duties necessary to the performance of the covered contract, but who are not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review, perform work in connection with a Federal Government contract.” This suggests a contract with the 2(a) clause may cover employees company-wide (within the corporate entity holding the covered contract).
- A covered contractor or subcontractor location is “a location where covered contract employees work, including a covered contractor workplace or Federal workplace.”
- A covered contractor workplace includes “location[s] controlled by a covered contractor at which any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract,” this “does not include a covered contractor employee’s residence.”
- However, Question No. 11 advises that individuals working from home on or in connection with a covered contract must comply with the vaccine mandate, even if they never work at a covered contractor workplace or Federal workplace during the relevant contract. That is, remote contractor employees working on or in connection with a covered contract are subject to coverage under the EO and must be fully vaccinated, regardless of whether they ever physically come on site to a covered contractor workplace or a Federal workplace. Assuming they work only from home, they are not subject to the masking and physical distance requirements.
- Federal workplaces constitute “any place, site, installation, building, room, or facility in which any Federal executive department or agency conducts official business, or is within an executive department or agency’s jurisdiction, custody, or control.”
Limited Exceptions to Vaccination
The Task Force aligns its COVID-19 vaccination requirements with the federal employee vaccine mandate required under September 9, 2021 Executive Order 14043, “Requiring Coronavirus Disease 2019 Vaccination for Federal Employees.” The Task Force’s Guidance does not contemplate a testing option, but rather requires vaccination, subject only to medical and religious accommodations.
The Task Force lists types of documentation - either hardcopy or digital - that contractors must review to confirm their employees’ vaccine status:
- a copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card;
- a copy of medical records documenting the vaccination;
- a copy of immunization records from a public health or State immunization information system; or
- 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.
Timeline and Reach
The deadline for contractor employees to be fully vaccinated is December 8, 2021. However, providing a date certain may not make sense, given that contractors’ covered contracts will renew at various times, i.e., if a contractor enters into a new covered contract on December 7, 2021, unless the contractor had a pre-existing vaccine mandate, the contractor may not be able to comply with the December 8 deadline. The Task Force Guidance allows agency heads to grant exceptions to the vaccine requirement based on “urgent, mission critical need[s].”
[I]n the case of such limited exceptions, the covered contractor must ensure these covered contractor employees are fully vaccinated within 60 days of beginning work on a covered contract or at a covered workplace. The covered contractor must further ensure that such employees comply with masking and physical distancing requirements for not fully vaccinated individuals in covered workplaces prior to being fully vaccinated.
Federal contractors should be aware that the Guidance strongly encourages
agencies . . . to incorporate a clause requiring compliance with this Guidance into contracts that are not covered or directly addressed by the order because the contract is under the Simplified Acquisition Threshold as defined in section 2.101 of the FAR or is a contract or subcontract for the manufacturing of products. Agencies are also strongly encouraged to incorporate a clause requiring compliance with this Guidance into existing contracts and contract-like instruments prior to the date upon which the order requires inclusion of the clause.
This aligns with a Task Force FAQ, posted before the Task Force Guidance, strongly encouraging agencies with contracts not covered by EO 14042
to incorporate vaccination requirements into contracts that are not covered by Executive Order 14042, consistent with applicable law. This might include, for example, incorporating vaccination requirements into contracts in advance of when they are otherwise required by the Executive Order or incorporating requirements into contracts that are not covered by the Executive Order, such as contracts under the Simplified Acquisition Threshold. Implementation of such additional requirements should generally follow the Safer Federal Workforce Task Force’s guidance for implementing the vaccination requirement in Executive Order 14042.
This attempt to apply the EO’s requirements to contracts beyond its scope may raise questions. For example, the EO, on its face, excludes contracts valued below the Simplified Acquisition Threshold (“SAT”), but the Task Force Guidance and FAQ explicitly contradict the EO’s language by encouraging inclusion of the clause in contracts under the SAT; unless the EO is modified, this should not be possible. However, the Task Force’s “encouragement” suggests that all federal contractors, whether or not they are explicitly covered by EO 14042, should be on the lookout for agency attempts to modify contracts to include the Guidance. While patience is a virtue, we must unfortunately await what the FAR Council delivers on October 8, 2021 to obtain clarity on whether it precludes executive agencies from incorporating the FAR clause into contracts not included in EO 14042’s scope (or, alternatively, inconsistencies with the EO could give rise to legal challenges to the regulatory action).
Beyond mandating vaccines, the Guidance directs contractors to ensure that all employees and visitors comply with CDC masking and physical distancing recommendations when at a covered contractor workplace, including requiring fully-vaccinated individuals to mask when in areas of high or substantial community transmission. Covered contractors must designate one or more individuals to oversee implementation and compliance with the Task Force Guidance. In addition, the designated individual(s) must ensure that information on required COVID-19 workplace safety protocols is communicated not only to covered contractor employees, but also to all other individuals likely to be present at covered contractor workplaces. The designated individual (or individuals) must also ensure that covered contractor employees present proper vaccination documentation.
Now that the Task Force has executed its initial EO obligations, attention turns to the Federal Acquisition Regulatory Council, which must amend the Federal Acquisition Regulation by October 8, 2021 to provide for inclusion of a clause, described in section 2(a) of EO 14042, requiring federal contractors and subcontractors to comply with Task Force Guidance. The FAR Council’s October 8 release becomes increasingly important based on the Task Force’s expressed intent to include its vaccine mandate and other Guidance even in contracts not covered by EO 14042. Please be aware that the Task Force Guidance may be updated, and covered contractors are expected to update their practices to comply with current workplace safety protocols as they change.
As we await additional government action and guidance, please consult our revised Vaccine Playbook, and reach out to your Seyfarth attorney with any questions. The Playbook is an organic document that provides valuable information to employers who are considering implementing, or who are now required to impose, vaccine mandates, and we will continue update it, as appropriate. The Playbook addresses the challenges associated with providing reasonable accommodation to those employees who seek disability or religious exemptions from vaccine mandates. Since, as noted above, the Task Force Guidance’s vaccine mandate does not allow for a testing alternative, federal contractors should expect a significant increase in religious and medical exemption requests.