Legal Alert: New Vaccination Requirements for Federal Contractors

Vandeventer Black LLP

On September 9, 2021, President Biden announced an ambitious plan to increase COVID-19 vaccinations. On that same date, he signed an Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO”). The EO requires that all new federal contracts, contract-like instruments, extensions or renewals of contracts or contract-like instruments, and exercises of options on existing contracts or contract-like instruments that are entered into, extended, renewed, or exercised on or after October 15, 2021, will have a clause requiring compliance with the guidance published by the Safer Federal Workforce Task Force (“Task Force Guidance”). In other words, existing contracts will not be affected until they are extended, renewed, or an option is exercised. The required clause must be incorporated into all subcontracts, at any tier, and shall “apply to any workplace locations … in which an individual is working on or in connection with” a covered contract.

The Task Force Guidance was issued on September 24, 2021. Here are the highlights:

  • The Task Force Guidance applies to “covered contractor employees,” which are all employees working on or in connection with a covered contract or working at a covered contractor workplace, including those employees who are not themselves working on or in connection with a covered contract. “Covered contractor workplaces” are any location controlled by a covered contractor at which any employee working on or in connection with a covered contract is likely to be present during the performance of a covered contract.
  • All covered contractor employees must be vaccinated, except in limited circumstances where an employee is legally entitled to an accommodation, by December 8, 2021, or the first day of the period of performance on a newly awarded covered contract or the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract. The contractor must confirm its employees’ vaccination status by reviewing proof of vaccination.
  • Covered contractors must designate a person or person to be their COVID-19 workplace safety coordinator at covered contractor workplaces.
  • Covered contractors are required to ensure that all individuals—both employees and visitors—comply with current CDC guidance for masking and physical distancing at covered contractor workplaces. In areas of high or substantial community transmission, everyone (regardless of vaccination status) must wear a mask in indoor settings. In areas of low or moderate community transmission, fully vaccinated individuals do not need to wear a mask. Currently, almost the entire United States is considered an area of high or substantial community transmission. Regardless of community transmission level, unvaccinated individuals also have to physically distance, but vaccinated individuals do not.

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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