[co-author: Abbegael Giunta]
On Friday, September 24, 2021, the Safer Federal Workforce Task Force issued new guidance on COVID-19 vaccination requirements and other workplace safety protocols for covered federal government contractors, as required under Executive Order 14042. Beginning on October 15, 2021, all agencies will be required to add a clause to all covered Federal procurement solicitations and contracts specifying that the contractor or subcontractor will comply with the vaccine requirement and COVID-19 workplace safety protocols. This requirement will not apply retroactively to existing contracts, but businesses should be aware that any future modifications to “covered contracts” after October 15, 2021, must contain the provision requiring compliance.
What is a “covered contract?”
The executive order defined covered contracts to include any new contract; new contract-like instrument; new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option to an existing contract or contract-like instrument, if:
- it is for services, construction, or a leasehold interest in real property;
- it is for services covered by the Service Contract Act, 41 U.S.C. 6701, et seq.;
- it is for concessions, including any concessions contract excluded by the Department of Labor regulations at 29 CFR 4.133(b); or
- it is entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.
The Vaccination Requirement
Pursuant to the new guidance, covered contractors must ensure that all covered employees are fully vaccinated no later than December 8, 2021, unless the employee is legally entitled to an accommodation. For newly awarded covered contracts or contracts with exercised options, renewals or extensions after December 8, 2021, all covered contractor employees must be fully vaccinated by the first day of the period of performance when the clause has been incorporated into the covered contract. It is the prime contractor’s responsibility to ensure that the required clause is incorporated into any covered first-tier subcontracts entered into or modified after October 15, 2021. Subcontractors are then responsible for ensuring that the required clause is incorporated and flows down to the next lower-tier subcontractor.
Covered employees are those “working on or in connection with a covered contract or working at a covered contractor workplace.” Accordingly, all employees who work at a location where any employee working on or in connection with a covered contract is likely to be present during the performance of the contract are subject to the vaccine mandate. According to the Guidance: “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 includes covered employees who are working remotely from their residence. The guidance also clarifies that even covered employees with recent confirmed cases of COVID-19 must be vaccinated.
In order to ensure that its employees are fully vaccinated, covered contractors must require their covered employees to show or provide documentation to prove vaccination status. A copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card, or a copy of medical records documenting the vaccination with the name, date of administration, and the name of the provider are all acceptable documentation of proof of vaccination status. Also, it is acceptable for an employer to view or receive the documentation in digital form, including, for example, a digital photograph, scanned image, or PDF. Employers that previously reviewed their employees’ vaccination cards and made a record of the provision of documentation – even where copies were not retained – are likely in compliance with this requirement. However, an attestation of vaccination by the covered employee is not an acceptable substitute.
Other Required COVID-19 Safety Protocols for Covered Contractor Workplaces
In addition to ensuring covered employees are fully vaccinated, covered contractors must continue to follow CDC guidance for masking and social distancing for both covered employees and site visitors in covered contractor workplaces. All individuals, regardless of vaccination status, must wear a mask in indoor settings in areas of high or substantial community transmission. Fully vaccinated people need not wear a mask in areas of low or moderate community transmission. Community transmission levels are determined based upon the CDC information available at https://covid.cdc.gov/covid-data-tracker/#county-view. To the extent practicable, individuals who are not fully vaccinated should maintain a distance of at least six feet from others at all times. However, fully vaccinated individuals do not need to physically distance regardless of the level of transmission in the area.
Covered contractors must require covered employees and site visitors who are required to wear a mask to:
- Wear appropriate masks consistently and correctly (over mouth and nose).
- Wear appropriate masks in common areas and shared workspaces (including open floorplan office space, cubicle embankments, and conference rooms).
- For individuals who are not fully vaccinated, wear a mask in crowded outdoor settings or during outdoor activities that involve sustained close contact with other people who are not fully vaccinated, consistent with CDC guidance.
For covered contractors with multiple buildings, sites, or facilities, the requirements will apply to all employees and sites unless the covered contractor can affirmatively determine that there will be no interactions between covered contractor employees and non-covered contractor employees during the period of performance of a covered contract. This includes interactions through use of common areas such as lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.
Exceptions to mask wearing and/or physical distancing requirements may be provided by the covered contractors consistent with CDC guidelines. For example, exceptions may be provided when an employee 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 physical distancing, when participating in an activity where a mask may get wet, or where wearing a mask would create a risk to workplace health or safety. The exception must be approved in writing by a duly authorized representative of the covered contractor.
Covered contractors must also designate one or more individuals to oversee the implementation and compliance with the Task Force Guidance. The designated individual(s) must ensure that information on required COVID-19 workplace safety protocols is communicated to covered contractor employees and all other individuals who may be present on a covered contractor workplace site. Additionally, they are charged with ensuring that the covered contractor employees and visitors comply with the requirements related to showing or provision of vaccination documentation.
Further clarification and guidance on coverage and contract provisions is expected from the Federal Acquisition Regulatory Council by October 8, 2021. While Executive Order 14042 only applies to employers with a covered federal government contract, OSHA is currently working on an Emergency Temporary Standard that will apply to all private employers with 100 or more employees and will require employees of such employers to be vaccinated or tested for COVID-19 each week. If you have any questions about the Executive Order, the new guidance, or the forthcoming OSHA ETS please contact any member of our Labor and Employment Practice Group.