As McGuireWoods noted in a Sept. 10, 2021 alert and in Sept. 20, 2021 FAQs, President Biden’s “Path Out of the Pandemic” employee COVID-19 vaccination mandates have three main components — one of which applies only to certain federal contractors and subcontractors based on Executive Order 14042 (EO) issued on Sept. 9, 2021.
On Sept. 24, the Safer Federal Workforce Task Force released new guidance on how that EO will operationally work and the locations and employees covered by it.
These new requirements are separate from the Task Force protocols issued on July 29, 2021 for certain contractor and subcontractor employees who physically work onsite at a federal facility. Highlights of the new guidance are as follows:
Where can employers find a copy of the Task Force Guidance?
A copy of the Task Force’s 14-page “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” (Guidance) can be found here.
What are the core requirements?
“Federal contractors and subcontractors with a covered contract are required to conform to the following workplace safety protocols:
Which contractors are covered?
Federal contractors and subcontractors are only affected if they have a contract or “contract-like instrument” (1) for services, construction or a leasehold interest in real property; (2) for services covered by the Service Contract Act; (3) for concessions; or (4) 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.
There is no small business (e.g., less than 100 employee) exception to the EO or the Guidance. However, supply contracts providing only “goods” and equipment to the federal government (and similar subcontracts to federal prime contractors) are not covered. Further, contracts not covered include:
Which contractor locations are covered?
A “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.” Thus, covered workplaces can extend beyond the parts of a building or campus where employees directly work “on or in connection with” a covered federal contract. Per the Task Force:
However, a “covered contractor workplace” does not include an employee’s personal residence.
Which contractor employees are covered?
“Covered contract employees” are defined as any full-time or part-time employee of a covered contractor:
Further, the Guidance asserts that work performed “in connection with” a covered contract includes “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.”
Thus, the Guidance is broader in scope than it would first appear. However, the Guidance does not include contractor employees “who only perform work outside the United States or its outlying areas.”
Do the requirements apply to remote employees?
Yes, with respect to vaccinations, but No as to other COVID-19 safety obligations. Per the Guidance:
Must all covered contract employees be vaccinated for COVID-19?
Yes, “except in limited circumstances where an employee is legally entitled to an accommodation.” Per the Guidance:
What do the masking and physical distancing rules require?
Covered contractors must ensure that all individuals, including covered contractor employees and visitors, comply with published Centers for Disease Control and Prevention (CDC) guidance for masking and physical distancing at a covered contractor workplace, except in the case of approved disability or religious accommodations. The Guidance summarizes current CDC guidance as follows:
How can employers determine the level of “community transmission” for a site?
Covered contractors are required to check the CDC COVID-19 Data Tracker County View website for community transmission information in all areas where they have a “covered contractor workplace” at least weekly to determine proper workplace safety protocols.
Are these new obligations effective immediately?
No, the mandatory COVID-19 vaccination and other safety requirements will be rolled out in phases via contract clause insertions in federal prime contracts. Per the Guidance, the Federal Acquisition Regulatory Council will by Oct. 8, 2021 issue guidance for agencies to add a clause related to these COVID-19 workplace safety protocols to covered federal procurement solicitations and contracts subject to the FAR, starting on Oct. 15. Further:
Once applicable to a federal prime contractor, the contractor “must flow the clause down to first-tier subcontractors.” Higher-tier subcontractors must in turn “flow the clause down to the next lower-tier subcontractor, to the point at which subcontract requirements are solely for the provision of products.”
All of this assumes that the rulemaking requirements of the federal Administrative Procedure Act can or will be met by such dates.
When must covered contractor employees be fully vaccinated?
For contractors and subcontractors that enter into a “covered contract” prior to Dec. 8, 2021 (whether as a new contract or as the result of an option, extension or renewal being exercised), covered employees must be vaccinated against COVID-19 and show proof of it by Dec. 8, 2021, unless they are granted an accommodation exemption. After Dec. 8, all covered contractor employees must be fully vaccinated by:
Where can I learn more?
The Guidance has 21 FAQs that are instructive.