United States: Vaccine Mandate For Federal Contractors: New Information

On Sept. 24, 2021, the Safer Federal Workforce Task Force delivered on the promise made by President Biden in his Sept. 9 Executive Order (the EO), by releasing the COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (the guidance). This guidance sets forth the terms and conditions by which federal contractors, subcontractors, and their employees are to comply with the EO's mandate of vaccinations against COVID-19. These requirements will be implemented by inclusion in all contracts awarded after Oct. 15, 2021, and in any pre-existing contract when an option is exercised or term extended.

The requirements in the EO apply to "covered contractors" and to subcontractors at all tiers, except for subcontracts that are solely for the provision of products. There is no exception for small businesses. Since the requirements are promulgated pursuant to Federal law, they supersede any contrary State or local law or ordinance.

From a high level, the guidance requires "covered contractors" to ensure that their "covered contractor employees" comply with the protocols set forth therein. This means that all covered employees must be fully vaccinated against COVID-19, unless the employee is legally entitled to an accommodation. Such employees must be vaccinated no later than Dec. 8, 2021, or the first day of performance for any contract that starts at a later date. Accommodations may be required for employees who are not vaccinated because of "a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance."

To ensure compliance, covered contractors must designate a person(s) to coordinate implementation and compliance with the guidance. Covered contractors are expected to review their employees' documentation of vaccination, and may not accept an employee's attestation of vaccination status. Additionally, masking and social distancing rules apply, consistent with the Model Safety Principles released in July, for all individuals in areas of high or substantial community transmission (a red or orange county in the Centers for Disease Control's community transmission tracker), and for non-fully-vaccinated individuals at all times. The masking requirements are subject to certain exceptions, consistent with CDC guidelines.

The guidance applies to "covered contracts" which, consistent with the EO, excludes contracts or subcontracts under the Simplified Acquisition Threshold or contracts or subcontracts for the manufacturing of products. However, the guidance goes beyond "covered contracts" by strongly encouraging agencies to incorporate a clause requiring compliance with the guidance in all contracts, not just those covered by the EO, including contracts under the Simplified Acquisition Threshold, contracts/subcontracts for the manufacturing of products, and those contracts and contract-like instruments that were awarded before Oct. 15, 2021. Consequently, if you have or will be awarded a contract that is not a "covered contract" don't be surprised if the contracting agency decides to include a provision mandating compliance with the guidance.

Here are some of the relevant definitions from the guidance:

• Covered contract – Any contract or contract-like instrument that includes the clause described in Section 2(a) of the EO.
• Covered contractor – A prime contractor or subcontractor at any tier who is party to a covered contract.
• Covered contractor employee – 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 includes employees of covered contractors who are not themselves working on or in connection with a covered contract.
• Contractor or subcontractor workplace location – A location where covered contract employees work, including a covered contractor workplace or Federal workplace.
• Covered contractor workplace – 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. A covered contractor workplace does not include a covered contractor employee's residence.
• Federal workplace – Any place, site, installation, building, room, or facility in which any federal executive department or agency conducts official business, or is within an executive department or agency's jurisdiction, custody, or control.
• Fully vaccinated – People are considered fully vaccinated for COVID-19 two weeks after they have received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine. There is currently no post-vaccination time limit on fully vaccinated status; should such a limit be determined by the Centers for Disease Control and Prevention, that limit will be considered by the Task Force and OMB for possible updating of this guidance.

Additionally, the guidance contains some helpful FAQ, which may be of interest:

• Q2: Do covered contractors need to provide onsite vaccinations to their employees? A: Covered contractors should ensure their employees are aware of convenient opportunities to be vaccinated. Although covered contractors may choose to provide vaccinations at their facilities or workplaces, given the widespread availability of vaccinations, covered contractors are not required to do so.
• Q5: Are covered contractor employees who have a prior COVID-19 infection required to be vaccinated? A: Yes, covered contractor employees who have had a prior COVID-19 infection are required to be vaccinated. More information from CDC can be found here.
• Q6: Can a covered contractor accept a recent antibody test from a covered contractor employee to prove vaccination status? A: No. A covered contractor cannot accept a recent antibody test from a covered contractor employee to prove vaccination status.
• Q7: Does this guidance apply to outdoor contractor or subcontractor workplace locations? A: Yes, this guidance applies to contractor or subcontractor workplace locations that are outdoors.
• Q11: 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.
• Q17: What constitutes work performed "in connection with" a covered contract? A: 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, perform work in connection with a federal government contract.
• Q20: Can a covered contractor comply with workplace safety requirements from the Occupational Safety and Health Administration, including pursuant to any current or forthcoming Emergency Temporary Standard related to COVID-19, instead of the requirements of this Guidance? A: No. Covered contractors must comply with the requirements set forth in this Guidance regardless of whether they are subject to other workplace safety standards.
• Q21: What is the prime contractor's responsibility for verifying that subcontractors are adhering to the mandate? A: The prime contractor is responsible for ensuring that the required clause is incorporated into its first-tier subcontracts in accordance with the implementation schedule set forth in section 6 of the order. When the clause is incorporated into a subcontract, a subcontractor is required to comply with this Guidance and the workplace safety protocols detailed herein. Additionally, first-tier subcontractors are expected to flow the clause down to their lower-tier subcontractors in similar fashion so that accountability for compliance is fully established throughout the federal contract supply chain for covered subcontractor employees and workplaces at all tiers through application of the clause.

Note that, per the EO, the guidance will only apply to contracts entered into after Oct. 15, 2021, until the agencies modify existing contracts to include a reference to the guidance. However, contractors should be prepared to comply with the guidance, as the Biden Administration has made compliance a top priority.

Additionally, we are aware that several lawsuits have already been filed against the President's vaccine mandates. We are tracking how those suits may impact enforcement of and compliance with the EO and guidance.