White House Issues Federal Contractor Vaccine Guidance

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Ballard Spahr LLP

[co-author: David S. Fryman]

On September 24, 2021, the White House issued Guidance explaining that Federal contractors and subcontractors with a covered contract or contract-like instrument must comply with the following workplace safety protocols:

  1. COVID-19 vaccination of covered contractor employees, except where an employee is legally entitled to an accommodation;
  2. Compliance with masking and physical distancing while in covered contractor workplaces; and
  3. Designation of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

The phrase “contract and contract-like instruments” is not as broad as widely reported in the press. It encompasses a new contract, new solicitation, extension or renewal of an existing contract, and exercise of an option on an existing contract (collectively “new contracts”), if

  • It is a procurement contract for services or construction;
  • It is a contract for services covered by the SCA;
  • It is a contract for concessions, including any concessions contract excluded by the Department’s regulations at 29 CFR 4.133(b); or
  • It is a contract 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.

For covered contracts awarded prior to October 15 where performance is ongoing, the requirements must be incorporated when an option is exercised or an extension is made. For new contracts, the requirements must be incorporated into contracts awarded on or after November 14.

The Guidance also includes a Q&A section with details on the vaccine and safety protocols, workplaces, scope and applicability of the Guidance, and compliance.

Businesses entering into covered contracts with the federal government, or exercising options or extensions in the coming weeks or months, should be prepared to implement the vaccine and masking guidance, and to adjust their practices to maintain compliance with any new guidance in the coming months.

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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