Vaccine mandate for many contractors is now imminent.
As ordered by President Joe Biden, the Safer Federal Workforce Task Force issued guidance today for federal contractors regarding COVID-19 prevention. Given the length and detail of the guidance, we are providing a quick summary here and will follow up with a more detailed bulletin shortly. We will also hold a webinar on this and the OSHA Emergency Temporary Standard once the latter is released.
Executive Order 14042 directed the Task Force to issue guidance explaining the “protocols required of contractors and subcontractors” in the effort to stop the spread of COVID-19. The Director of the Office of Management and Budget was required to approve this guidance before its publication.
As we previously reported, the guidance will be adapted into a new contract clause that will be incorporated into new, extended, or renewed contracts on or after October 15. The only contracts covered by the Executive Order are as follows:
The guidance requires covered contractors to comply with the following safety protocols:
“Covered contract employee” 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” and includes employees who are not themselves working on or in connection with a covered contract.
“Covered contractor workplace” is 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,” but this does not include an employee’s residence.
Contractors will be required to review employees’ documentation to prove their vaccination status, and employees must provide copies of one of the following documents for this purpose:
Contractors may accept digital copies of such records, including digital photographs, scanned images, or pdfs.
The guidance says, "Covered contractors must ensure that all individuals, including covered contractor employees and visitors, comply with published CDC guidance for masking and physical distancing at a covered contractor workplace. . . .” Thus, “[i]n areas of high or substantial community transmission, fully vaccinated people must wear a mask in indoor settings, except for limited exceptions. . . .” Those who are not fully vaccinated must generally wear masks and socially distance regardless of the level of community transmission.
The guidance is accompanied by several pages of FAQs, which provide further details on implementation of the requirements. For example, FAQ 11 addresses remote workers:
“How does this Guidance apply to covered contractor employees who are authorized under the covered contract to perform work remotely from their residence? A: An individual working on a covered contract from their residence is a covered contractor employee, and must comply with the vaccination requirement for covered contractor employees, even if the employee never works at either a covered contractor workplace or Federal workplace during the performance of the contract. A covered contractor employee’s residence is not a covered contractor workplace, so while in the residence the individual need not comply with requirements for covered contractor workplaces, including those related to masking and physical distancing, even while working on a covered contract.
(Emphasis added.) The guidance itself does not address in detail which contractors will be covered or how contractors can determine whether they are included in one of the categories listed above. Notably, however, previous FAQs released by the Task Force (as well as today's guidance) indicate that federal agencies need not limit the contract clause to those covered by the Executive Order and may include the vaccine requirements in contracts that are not expressly included within the parameters of the Executive Order.
“Q: Can agencies incorporate vaccination requirements into contracts that are not covered by Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Contractors)? A: Yes. Agencies are strongly encouraged to incorporate vaccination requirements into contracts that are not covered by Executive Order 14042, consistent with applicable law. This might include, for example, incorporating vaccination requirements into contracts in advance of when they are otherwise required by the Executive Order or incorporating requirements into contracts that are not covered by the Executive Order, such as contracts under the Simplified Acquisition Threshold. Implementation of such additional requirements should generally follow the Safer Federal Workforce Task Force’s guidance for implementing the vaccination requirement in Executive Order 14042.
Thus, all federal contractors and subcontractors should carefully review contract clauses and provisions in all new solicitations and agreements to determine whether these requirements will apply.
At least two lawsuits have already been filed challenging the constitutionality of President Biden’s mandates. A group of federal employees and employees of contractors filed suit in federal court in Washington, D.C., alleging that the vaccine mandate violates their rights to religious freedom (among other things), and the Attorney General of Arizona is also contesting the legality of the orders. My colleague Zan Blue has explored the potential disputes that the federal government may face in enforcing vaccine mandates.
As noted above, all contractors should pay close attention to all agreements involving federal work and ensure that personnel involved in managing those agreements are advised to provide the controlling documents to in-house counsel or human resources for scrutiny. Unless and until the Executive Order is enjoined or otherwise rendered ineffective, federal contractors should be vigilant about determining coverage and complying where necessary.