Vaccination Mandates for Federal Contractors and Subcontractors

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On September 24, 2021, the Safer Federal Workforce Task Force (the “Task Force”) issued its guidance (the “Guidance”), under Executive Order 14042 (the “Executive Order”), requiring employees of workplace locations with individuals working on or in connection with a Federal Government contract or contract-like instrument be fully vaccinated by December 8, 2021. This e-alert summarizes key aspects of the Executive Order and Guidance, including which companies and employees are subject to the mandate, the required protocols, and the timeline for compliance.

Does the Guidance apply to my company?

1. Is your company a party to a “Covered Contract”?

The first step in determining whether the Guidance applies to your company is to identify whether your company is a party to the type of Federal Government contract or contract-like instrument subject to the Executive Order.

The Executive Order applies to Federal Government contracts or contract-like instruments for:

  • Procurement for services, construction, or a leasehold interest in real property;
  • Services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
  • Concessions, including any concessions contract excluded by the Department of Labor regulations at 29 C.F.R. 4.122(b); and
  • Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.

The Executive Order does not apply to the following:

  • Grants;
  • Contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93-638), as amended;
  • Contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold, as defined in section 2.101 of the Federal Acquisition Regulation (currently, $250,000); and
  • Subcontracts solely for the provision of products.

If your company is a party to one of the foregoing applicable contracts or contract-like instruments, then the clause described in Section 2(a) of the Executive Order must be included in the contract or contract-like instrument. The Section 2(a) clause requires the contractor or subcontractor to comply with all COVID-19 workplace safeguards published by the Task Force. This clause must be included in all applicable (1) new contracts or contract-like instruments, (2) new solicitations for a contract or contract-like instrument, (3) existing contracts or contract-like instruments when an extension or renewal is made, and (4) existing contracts or contract-like instruments when an option is exercised. See the timeline for compliance section below for the timing requirement for including the Section 2(a) clause.

Any contract or contract-like instrument that includes the Section 2(a) clause is a “covered contract” under the Guidance.

A prime contractor or subcontractor that is a party to a covered contract is a “covered contractor” and subject to the Guidance.

2. Does the size of my company matter?

If your company is a party to a covered contract, it is a covered contractor and subject to the Guidance regardless of size. The Guidance applies equally to small businesses, and does not have an employee threshold count like OSHA’s forthcoming Emergency Temporary Standard.

Does the Guidance apply to my employees?

The Guidance applies to “covered contractor employees,” which is defined as 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 definition expressly includes employees of covered contractors who are not themselves working on or in connection with a covered contract.

1. Are your employees working on or in connection with a covered contract?

The Task Force adopts a broad definition of employees working “in connection with a covered contract.” The definition includes not only employees who perform duties necessary to the performance of the covered contract, but also those who are not directly engaged in performing the specific work called for by the covered contract. Such employees may include those in the human resources, billing, or legal departments. If your employee performs work directly or indirectly associated with a covered contract, then they are subject to the Guidance.

2. Are your employees working at a covered contractor workplace?

Even if your employees are not working on or in connection with a covered contract, they are still subject to the Guidance if they work at a covered contractor workplace. A “covered contractor workplace” is 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.

In essence, if your company has a single employee working on or in connection with a covered contract, then with rare exception, all employees of the same building, site, facility, and campus will also be subject to the Guidance.

3. Does the fact that my employee works remotely matter?

Even if your employee exclusively works remotely from home, the employee is still a covered contractor employee subject to the Guidance if the employee is working on or in connection with a covered contract.

However, the Guidance does not apply to covered contractor employees that exclusively perform work outside of the United States.

Does the Guidance apply even if my company is subject to OSHA’s Emergency Temporary Standard?

The Guidance applies to covered contractors even if they are subject to other workplace safety standards, including the forthcoming OSHA Emergency Temporary Standard. Thus, covered contractors must comply with the more stringent requirements of the Guidance, which requires covered contractor employees be fully vaccinated, whereas the Emergency Temporary Standard permits an option for weekly COVID-19 testing.

If the Guidance applies to my company, what are the required safety protocols?

1. Vaccine Requirement.

All covered contractor employees must be fully vaccinated with the COVID-19 vaccine by December 8, 2021, with limited exception for those employees that are legally entitled to a religious or disability accommodation.

Covered contractors must require covered contractor employees to show or provide one of the following documents in hard or digital copy form:

  • 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 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 the vaccine

2. Masking and Social Distancing Requirement.

Covered contractors must ensure that all individuals, including employees and visitors, at a covered contractor workplace comply with the CDC’s masking and physical distancing requirements.

3. Designated COVID-19 Compliance Personnel.

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

If the Executive Order applies to my company, what is the timeline for compliance?

1. Vaccine Mandate Timeline.

All covered contractor employees must be fully vaccinated by December 8, 2021. Importantly, per the Guidance, “fully vaccinated” means two weeks after the employee has received the second dose in a two-dose series of vaccines, or two-weeks after the employee has received the single-dose vaccine.

For covered contracts awarded after December 8, 2021, covered contractor employees must be fully vaccinated by the first day of the period of performance under the contract. For covered contracts extended, renewed, or where an option is exercised after December 8, 2021, covered contractor employees must be fully vaccinated by the first day of the period of performance.

2. Timeline for Inclusion of the Section 2(a) Clause.

For existing covered contracts awarded prior to October 15, 2021, the Executive Order’s Section 2(a) clause must be incorporated into the covered contract when an option is exercised or the contract is renewed or extended.

For newly-awarded covered contracts awarded on or after November 14, 2021, the Executive Order’s Section 2(a) clause must be incorporated into the newly-awarded contract.

For contracts awarded between October 15, 2021 and November 14, 2021, the Executive Order’s Section 2(a) clause must be included in the solicitation, but the clause is not required in contracts awarded during this time period unless the solicitation for such contract was issued on or after October 15, 2021.

* * *

On September 19, 2021, Porter Hedges published its first e-alert in a series of upcoming articles discussing federal requirements for COVID-19 vaccines and testing in the workplace - U.S. Department of Labor Issues Vaccine Mandate – What’s Next for Employers. The federal requirements arise out of President Joe Biden’s September 9, 2021 Path Out of the Pandemic: COVID-19 Action Plan (the “Action Plan”) and issuance of Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors.”

This previous e-alert addressed one of the Action Plan’s six-prongs: OSHA’s forthcoming Emergency Temporary Standard that will require all private sector companies with 100 or more employees to require their employees to be fully vaccinated or undergo weekly testing for COVID-19.

Notably, the mandates for federal contractors and subcontractors are expansive in coverage and more stringent than the anticipated requirements for non-federal contractor/subcontractor private sector companies. Thus, companies should assess whether they are subject to the federal contractor and subcontractor requirements of Executive Order 14042 (as detailed above), versus the Emergency Temporary Standard described in our September 19 e-alert and accompanying webinar.

We will continue to keep you informed as more information becomes available around this issue as well as any others related to the broader implications of the federal vaccine mandate.

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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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