Update (Oct. 18, 2021):
The Federal Acquisition Regulatory (FAR) Council and federal agencies
have taken an aggressive position in rolling out the federal contractor
and subcontractor vaccination mandate — “encouraging” contracting
officers to include the Executive Order clause in all federal contracts beginning Oct. 15, 2021 –
including contracts for goods and other exceptions otherwise excluded
by the executive order. For more details,
please see our alert.
Update (Oct. 13, 2021): On Oct. 11, 2021, Texas Gov. Greg Abbott signed Executive Order No. GA-40 (EO), which prohibits any “entity in Texas” from compelling an employee or consumer to receive a COVID-19 vaccine. For more details and analysis see our alert.
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:
- COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;
- Compliance by individuals (including covered contractor employees and visitors) with the Guidance related to masking and physical distancing while in covered contractor workplaces; and
- Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.”
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:
- Indian tribe contracts;
- contracts with a value equal to or less than the Federal Acquisition Regulation (FAR) simplified acquisition threshold (currently $250,000);
- contracts involving employees performing work outside the United States; and
- subcontracts solely for the provision of products.
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:
- The Guidance applies to indoor and outdoor workplace locations.
- The Guidance applies to all buildings and sites within a campus of work locations — and floors and areas of a given building or work location — where individuals may “come into contact with a covered contractor employee 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.”
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:
- working “on or in connection with a covered contract,” or
- working at a covered contractor workplace.
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:
- “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.”
- However, as noted above, a “covered contractor workplace” does not include an employee’s personal residence. Thus, “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.”
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:
- “A covered contractor may be required to provide an accommodation to covered contractor employees who communicate to the covered contractor that they are not vaccinated against COVID-19 because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance.”
- “Requests for ‘medical accommodation’ or ‘medical exceptions’ should be treated as requests for a disability accommodation.”
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:
- Fully Vaccinated Employees: In areas of high or substantial community transmission, fully vaccinated individuals must wear a mask in indoor settings, except for limited exceptions discussed in the Guidance. In areas of low or moderate community transmission, fully vaccinated individuals do not need to wear a mask. Fully vaccinated individuals do not need to physically distance regardless of the level of transmission in the area.
- Non-Fully Vaccinated Employees: Individuals who are not fully vaccinated must wear a mask indoors and in certain outdoor settings (as outlined in the Guidance), regardless of the level of community transmission in the area. To the extent practicable, individuals who are not fully vaccinated should maintain a distance of at least 6 feet from others at all times, including in offices, conference rooms, and all other communal and work spaces.
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:
- For contracts awarded prior to Oct. 15 where performance is ongoing: The requirements must be incorporated at the point at which an option is exercised or an extension is made.
- For new contacts: The requirements must be incorporated into contracts awarded on or after Nov. 14.
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:
- the first day of the period of performance on a newly awarded covered contract, and
- the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.
Where can I learn more?
The Guidance has 21 FAQs that are instructive. Further, for questions about the new mandatory contractor vaccination requirements or their coverage scope, or if you need assistance developing or updating policies and materials for implementation, please contact the authors of this article, your McGuireWoods contact, or a member of the firm’s labor and employment, affirmative action, federal contracting or COVID-19 response teams.