Monday, November 1, 2021: New Guidance for Federal Government Contractors on Vaccine Mandate Continues to Stretch Its Reach
The Safer Federal Workforce Task Force posted new guidance for federal Government Contractors implementing the vaccine mandate per Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” There are seven new questions and answers under three existing categories: Vaccination & Safety Protocols, Scope & Applicability, and Compliance. We have provided the questions and abbreviated answers below; please see the Task Force Guidance for the complete unedited answers and for further details and explanations.
Vaccination and Safety Protocols
Q: If a covered contractor can access a covered contractor employee’s vaccination documentation, consistent with relevant privacy laws, does the covered contractor need to require the employee to show or provide documentation?
Q: Do all requests for accommodation need to be resolved by the covered contractor by the time that covered contractor’s employees begin work on a covered contract or at a covered workplace?
A: No… [But see the OSHA Emergency Temporary Standard for a different answer]
Q: When a covered contractor employee is not vaccinated because a covered contractor has provided the employee with an accommodation, what workplace safety protocols must the employee follow while in a Federal workplace?
A: The Federal agency will determine the workplace safety protocols that individuals who are not fully vaccinated must follow while in a Federal workplace…[But see the OSHA Emergency Temporary Standard for a different answer]
Scope and Applicability of Task Force Guidance for Federal Contractors
Q: If a corporate affiliate of a covered contractor does not otherwise qualify as a covered contractor, are the employees of that affiliate considered covered contractor employees subject to COVID-19 workplace safety protocols for Federal contractors established through Task Force Guidance? (Full answer provided below)
A: For purposes of Task Force Guidance, business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly: (i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.
Indicia of control include, but are not limited to, interlocking management or ownership, identity of interests among family members, shared facilities and equipment, or common use of employees.
An employee of a corporate affiliate of a covered contractor is considered a covered contractor employee if the employee performs work at a covered contractor workplace. (emphasis added)
Q: If the workplace where a covered contractor’s employees perform work on or in connection with a covered contract is a location owned, leased, or otherwise controlled by a corporate affiliate of a covered contractor that does not otherwise qualify as a covered contractor under Task Force guidance, is the workplace considered a covered contractor workplace?
A: (Same as above with the following):
If 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 at a workplace controlled by a corporate affiliate of that covered contractor, that workplace is considered a covered contractor workplace. (emphasis added)
Q: What steps should a covered contractor take if a covered contractor employee refuses to be vaccinated?
A: A covered contractor should determine the appropriate means of enforcement… [But see the OSHA Emergency Temporary Standard for a different answer]
Q: What steps should a [federal contracting] agency take if a covered contractor does not comply with the requirements in the Task Force’s Guidance for Federal Contractors and Subcontractors?
A: … Where covered contractors are working in good faith and encounter challenges with compliance with COVID-19 workplace safety protocols, the [federal] agency contracting officer should work with them [the contractors] to address these challenges. If a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken.
How We Got Here
We twice discussed this controversial Executive Order in our September 13, 2021, Week In Review: