On September 24, 2021, the Safer Federal Workforce Task Force issued COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (the “Guidance”). This highly anticipated Guidance outlines the Covid-19 protocols for government contractors that were announced on September 9 in Executive Order 14042 (Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors) (“Order”), which was covered in a recent M&S Industry Alert. These new protocols will be enforced through a contract clause that must be included in all solicitations issued on or after October 15, and in contracts awarded after November 14 regardless of when the solicitation was issued. For contracts awarded between October 15 and November 14 pursuant to a solicitation issued prior to October 15, agencies are “encouraged” to include the clause, but are not required to do so. Additionally, agencies must include the clause whenever an option is exercised or an extension is made to an existing contract on or after October 15. Agencies are also “strongly encouraged” to incorporate “a clause” requiring compliance with this Guidance into existing contracts even if, by the terms of the Order and Guidance, they are not required to do so.

Contractors will be required to flow down this clause to the point at which subcontract requirements are “solely for the provision of products.” As detailed below, all covered contractor employees — including employees who work on a Government contract exclusively from their residences as well as employees who are not working on a Government contract but work at the same location as employees who are — will be subject to a vaccine mandate. Additionally, all persons who work at a covered contractor location — defined as “a location 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” —will be subject to additional safety protocols, such as masking and physical distancing, regardless of whether they are working on a government contract.

The Guidance describes three COVID-19 protocols:

First, covered contractors will need to ensure that all covered contractor employees be fully vaccinated no later than December 8, 2021, except in limited circumstances in which an employee is legally entitled to an accommodation on the basis of disability (which includes medical accommodations) or sincerely held religious belief, practice, or observance.

• “Covered contractor” means “a prime contractor or subcontractor at any tier who is party to a covered contract.
• “Covered contract” means “any contract or contract-like instrument,” as described in Section 5(a) of the Order. As noted in the recent Industry Alert, the new requirements technically do not apply to grants, contracts with the Indian Tribes, contracts or subcontracts whose value is equal or below the simplified acquisition threshold (“SAT”) ($250,000 for most new contracts), employees who perform work outside the United States or its outlying areas, or subcontracts solely for the provision of products. However, the Guidance “strongly encourage[s]” agencies to apply these requirements to contracts under the SAT and for the manufacture of products.
• “Covered contractor employee” is defined in broad terms to 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. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.” Additionally, covered contractors are “strongly encouraged” to incorporate a vaccination mandate “into their non-covered contracts and agreements with non-covered contractors whose employees perform work at covered contractor workplaces but who do not work on or in connection with a Federal contract, such as those contracts and agreements related to the provision of food services, onsite security, or groundskeeping services at covered contractor workplaces.”
• Contractors must require covered employees to show proof of that they are “fully vaccinated” by December 8, 2021, even if they exclusively work remotely from their residences. The Guidance bars reliance on employee attestations and permits several forms of documentation, including the submission of a photograph or scan of a vaccine card. It does not appear that vaccination is required for visitors at covered contractor locations.
• Although the Guidance notes that there is currently no time limit on fully vaccinated status, it leaves open the possibility that employees will be required to obtain and show proof of a booster shot in order to remain “fully vaccinated.”

Second, covered contractors will be required to ensure that all individuals present at covered contractor workplaces, including covered contractor employees and visitors, comply with CDC guidance for masking and physical distancing.

• In areas of high or substantial community transmission, fully vaccinated people must wear a mask in indoor settings, except for limited exceptions discussed in this Guidance. In areas of low or moderate community transmission, fully vaccinated people do not need to wear a mask. Fully vaccinated individuals do not need to physically distance regardless of the level of transmission in the area.
• Individuals who are not fully vaccinated must wear a mask indoors and in certain outdoor settings regardless of the level of community transmission in the area. To the extent practicable, individuals who are not fully vaccinated should maintain a distance of at least six feet from others at all times, including in offices, conference rooms, and all other communal and work spaces.
• Covered contractors must check the CDC COVID-19 Data Tracker County View website for community transmission information in all areas where they have a covered contractor workplace at least weekly to determine proper workplace safety protocols. At the time of publication, the level of transmission is “High” in 94% of US counties.
• Accommodations for the masking requirement are the same as those for the vaccination requirement. Additionally, covered contractors are authorized to provide exceptions when engaging in activities where a mask may get wet, in high intensity activities where masking may make breathing difficulty, or in other situations where masking could create a risk to workplace health, safety, or job duty as determined by a workplace risk assessment.

Third, covered contractors must designate a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

• The designated individual (or individuals) must ensure that information on the latest required COVID-19 workplace safety protocols is provided to covered contractor employees and all other individuals likely to be present at covered contractor workplaces.
• The designee must also ensure that covered contractor employees provide proper vaccination documentation.

In short, the application of the new protocols will apply broadly and extend well beyond federal procurement contracts. Going further than the President’s previous remarks, the new COVID-19 protocols will apply to all federal contractors and subcontractors regardless of whether they work at a federal worksite or contractor worksite. Additionally, these new requirements will impose burdens and legal risk on covered contractors:

• Contractors will be required to enforce all three protocols on their own employees and within their own facilities, regardless of whether the employees are tasked to work on a government contract.
• Contractors will be required to review employee submission of proof of vaccination and accommodation requests. Contractors who wrongly deny an accommodation may be subject to litigation risk.
• Contractors will be responsible for flowing down the contract clause, at all tiers, except for subcontracts solely for the provision of products. This requirement exposes contractors to supply chain management risk. It is unclear to what extent contractors will be held responsible by the government or higher tier contractors for failing to enforce the COVID-19 protocols on subcontractors.
• Contractors will be required to enforce the COVID-19 protocols in States or localities that seek to prohibit vaccine and mask mandates — which could expose the contractor to potential litigation risk stemming from conflicting authorities.
• Contractors will be required to collect and maintain documents and process accommodation requests, which may consume significant time and resources. It is unclear whether the Government will entertain price adjustments to cover the cost of such efforts.

There are many details that will need to be ironed out by both the Safer Federal Workforce Task Force and the Federal Acquisition Regulatory Council. For instance, it is unclear what recordkeeping requirements will apply to contractors, and whether contractors will be subject to audit by an Agency. Given the fast-moving deadlines in the Order, and the challenges posed by state laws prohibiting vaccine mandates, we recommend that contractors contact an attorney familiar with government contracts law.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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