Summary of New Guidance on COVID-19 Vaccine Mandate

Schwabe, Williamson & Wyatt PC


On September 9, 2021, President Biden issued his Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (the “Executive Order”) that, when implemented, will require most federal contractors to comply with all guidance for federal contractor and subcontractor workplace locations published by the Safer Federal Workforce Task Force (see On September 24, 2021, the Safer Federal Workforce Task Force issued COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (the “Guidance”), which provides guidance regarding implementation of the Executive Order. 

We previously discussed the contracts to which the Executive Order applies, and does not apply.


Federal agencies will implement the Executive Order’s vaccine mandate by incorporating contract clauses in federal government contracts to which the mandate applies (“covered contracts,” a subject that was addressed in our prior update.) The contract clause will require covered contractors to comply with the Guidance and any updates to the Guidance. The Guidance states that the FAR Council will develop the required contractual clause by October 8, 2021, and amend the FAR to include the new clause as a mandatory provision. The Guidance further states that the FAR Council will recommend that Federal Agencies exercise their authority to deviate from the FAR and include that clause in their contracts prior to amendment of the FAR. 

Vaccine Mandate

The mandate imposed by the Executive Order through the Guidance is clear:

“Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation.”

Covered contractors will be required to mandate that their covered contractor employees provide one of the following documents:

  • 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.

The Guidance does not require covered contractors to make the vaccine available to their employees in the workplace, although covered contractors may choose to do so. If covered contractors do not make the vaccine available at the worksite, the Guidance states that covered contractors should ensure that their covered contractor employees are aware of convenient opportunities to be vaccinated.

Covered contractor employees who have had a prior COVID-19 infection are still required to be vaccinated.

Reasonable Accommodation

The Guidance recognizes that reasonable accommodations must be provided to covered contractor employees who are legally entitled to an accommodation due to medical or religious reasons. The covered contractor is the party that determines whether a covered contractor employee is legally entitled to an accommodation, unless a Federal Agency is considered to be a joint employer of the covered contractor employee. In such cases, both the covered contractor and the Federal Agency must determine whether the covered contractor’s employee is legally entitled to an accommodation. The Guidance does not adopt or impose any new standards or procedures that the covered contractor must apply when determining if a covered contractor employee is legally entitled to accommodation. 

Deadline for Contractor Employees to be Fully Vaccinated

Covered contractor employees who are not legally entitled to accommodation must be fully vaccinated no later than December 8, 2021 for those covered contractors who have a covered contract to which the new clause is added. After December 8, 2021, covered contractor employees must be fully vaccinated by the first day of the period of performance of any newly awarded contract or, for existing contracts, 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 contract. 

Scope of the Mandate - Covered Contractor Employees 

The scope of the mandate is broad and it includes all full and part time employees of a covered contractor that are (1) working on or in connection with a covered contract, or (2) are working at a covered contractor workplace. 

An  employee is “working on or in connection with” a covered contract if they perform duties necessary to the performance of the covered contract, even if they are not directly engaged in performing the specific work called for by the covered contract. The Guidance states that this includes employees performing services such as human resources, billing, and legal review in connection with a covered contract. 

The Guidance defines a “covered contractor workplace” 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. A covered contractor workplace does not include a covered contractor employee’s residence.”   

Accordingly, if a covered contractor employee, i.e. an employee working on or in connection with a federal contract, is likely to be at a particular worksite or company office, then all employees in that worksite or company office, even if they do not work on or in connection with any federal contract, will be subject to the mandate. This includes employees who may come into contact with covered contractor employees in shared spaces such as lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages. 

If covered contractor employees are limited to a segregated part of a facility, and the employer can affirmatively determine that no other employees will come into contact with the covered contractor employees, the vaccine mandate can be limited to the covered contractor employees. 

Finally, remote employees who are working on or in connection with a covered contract are subject to the vaccine mandate, even if they are working from home and do not come to their employer’s office or a federal worksite. The only exception for remote employees is that, while in their residence, they do not need to follow the Guidance’s requirements regarding masking and social distancing. 

Masking and Social Distancing Requirements

The Guidance also imposes requirements regarding masking and social distancing at covered contractor worksites based on whether the covered contractor worksite is an area of “high or substantial community transmission” or “low or moderate community transmission” as determined by the CDC COVID-19 Data Tracker County View:

  • In areas of high or substantial community transmission, fully vaccinated people must wear a mask in indoor settings.
  • In areas of low or moderate community transmission, fully vaccinated people do not need to wear a mask.
  • Individuals who are not fully vaccinated must
    • wear a mask indoors regardless of the level of community transmission in the area; and
    • To the extent practicable, 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.

Fully vaccinated individuals do not need to socially distance regardless of the level of transmission in their area.

Covered contractors must check the CDC COVID-19 Data Tracker County View website for community transmission information at least weekly to determine proper workplace safety protocols.

  • When the level of community transmission increases from low or moderate to substantial or high, covered contractors must put in place more protective workplace safety protocols.
  • When the level of community transmission is reduced from high or substantial to moderate or low, the level of community transmission must remain at that lower level for at least two consecutive weeks before the covered contractor utilizes those protocols recommended for areas of moderate or low community transmission.

Exceptions to Masking and Social Distancing Requirements

Covered contractors may provide exceptions to mask wearing and/or social distancing requirements consistent with CDC guidelines, including:

  • when an individual is alone in an office with floor to ceiling walls and a closed door,
  • for a limited time when eating or drinking and maintaining appropriate distancing,
  • when employees are engaging in activities in which a mask may get wet,
  • for high intensity activities where covered contractor employees are unable to wear a mask because of difficulty breathing, or
  • For activities for which wearing a mask would create a risk to workplace health, safety, or job duty as determined by a workplace risk assessment.

Covered contractors must document these exceptions in writing and have them approved by a “duly authorized representative of the covered contractor.”

Designation of Individual to Coordinate Implementation of Guidance

Covered contractors must designate a person or persons to coordinate implementation of and compliance with the vaccine mandate and safety protocols.

The designated individual (or individuals) must ensure that information on required COVID-19 workplace safety protocols is provided to covered contractor employees and all other individuals likely to be present at covered contractor workplaces through the use of flyers, posters, emails, policies, etc.

The designated individual (or individuals) must also ensure that covered contractor employees comply with the requirements in the Guidance related to the showing or provision of proper vaccination documentation.

Visitors to Covered Contractor Worksites

Covered contractors must post signage at entrances to “covered contractor workplaces” providing information on safety protocols for fully vaccinated and not fully vaccinated individuals regarding

  • masking,
  • physical distancing,
  • appropriate workplace safety protocols,

Subcontractors and Small Businesses

The vaccine mandate applies to subcontractors at all tiers, except for subcontracts solely for the provision of products. As such, covered contractors will be required to flow the vaccine mandate contract clause down to first-tier subcontractors and higher-tier subcontractors will be required to flow the vaccine mandate contract clause down to the next lower-tier subcontractor.  The vaccine mandate clause will not have to be used in subcontracts that are solely for the provision of products.

There are no exceptions for small businesses, which must also comply with the vaccine mandate if they are a covered contractor and have a covered contract. 

Unanswered Questions – Pay and Sick Leave and Who Pays for the Additional Costs

The Guidance does not address the questions of whether covered contractors will have to pay employees for time spent getting vaccinated or recovering from a vaccination. The Guidance also does not address how, or whether, covered contractors will be entitled to recover additional costs through the use of a Request of Equitable Adjustment. As to these issues, other federal, state and local law may apply and govern.


Employers will need to develop policies that implement the Guidance, including addressing: (1) discipline for employees who do not comply with the mandate without a legal right to an accommodation; (2) how to evaluate and process requests for accommodations; (3) documentation and protection of records regarding employee vaccination status; (4) tracking of which federal contractor worksites are in high or substantial community transmission areas and which are in low or moderate community transmission areas; (5) signage and guidance regarding use of masks and social distancing, including any applicable exceptions, and (6) designating a person or persons to coordinate implementation of and compliance with the vaccine mandate and safety protocols.

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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