United States: Federal Contractors Required To Enact Vaccine Mandates And Other COVID Safety Protocols

On September 9, 2021, President Biden announced several "Path Out of the Pandemic" initiatives designed to increase vaccination rates through workplace vaccine mandates. While the "splashiest" announcement–with potentially the broadest impact– pertained to a forthcoming Emergency Temporary Standard ("ETS") which would be applicable to employers with one hundred or more employees, the announcement with the most immediate impact pertains to federal contractors. While the ETS announced on September 9 has yet to be issued, the federal contractor mandate, as set forth in Executive Order 14042, is already in place, with a compliance deadline of December 8, 2021. Employers therefore need to figure out, in a hurry, whether this Executive Order applies to them, and if so, what is required for compliance.

Who is covered by the mandate?

First, just because an employer is considered a federal contractor subject to the jurisdiction of the Office of Federal Contract Compliance Programs ("OFCCP") for other purposes, does not necessarily mean it is subject to Executive Order 14042. Executive Order 14042 states that it is intended to promote "economy and efficiency in Federal procurement by ensuring that the parties that contract with the Federal Government provide adequate COVID-19 safeguards to their workers performing on or in connection with a Federal Government contract or contract-like instrument (emphasis added)."

The Executive Order further states that it shall apply to: "any new contract; new contract-like instrument; new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument, if:

The Executive Order states that it shall not apply to:

The Executive Order further states, that, for purposes of determining which employers are covered, the term "contract or contract-like instrument" shall have the meaning set forth in the Department of Labor's proposed rule, "Increasing the Minimum Wage for Federal Contractors, " 86 Fed. Reg. 38816, 38887 (July 22, 2021). Therefore, at least presently, it appears that any contracts for the manufacturing or furnishing of materials, supplies, articles or equipment to the Federal Government, including those subject to the Walsh-Healey Public Contracts Act (PCA) are not included.

On September 24, 2021, the Task Force provided further guidance that included "definitions of relevant terms for contractors and subcontractors, and explanations of protocols required of contractors and subcontractors to comply with this workplace safety guidance." Based on the guidance received to date, while it is quite clear that some types of contracts will be covered, in other situations, covered status remains murky.

Also, an employer must determine how much of its workforce will be subject to a vaccine mandate based on it having one or more covered contracts. While it is clear the intent is for a mandate to be quite far-reaching, it appears the following employees are exempt from a mandate: (1) employees who are legally entitled to an exemption based on a disability or sincerely held religious belief; (2) teleworking employees who work exclusively at home and who do not work on or in connection with a covered contract; and (3) employees who do not work on or in connection with a covered contract and who work at a contractor facility in which no other employee with whom they may come in contact works on or in connection with a covered contract at any time during the period of that covered contract. ¹

Employers who are in doubt should seek advice on their specific situations to determine the applicability of Executive Order 14042 their organization, and the scope of coverage

Summary of Workplace Safety Protocols

Pursuant to Executive Order 14042, federal contractors and subcontractors with a covered contract will be required to conform to the following workplace safety protocols:

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

Covered contractors must ensure that all covered employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. Covered contractor employees must be fully vaccinated no later than December 8, 2021. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by 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. Notably, contractor employees working on a covered contract from their residence (even if they work exclusively from home) also must comply with the vaccination requirement for covered contractor employees.

The covered contractor must review its covered employees' documentation to prove vaccination status. Covered contractors must require covered contractor employees to show or provide their employer with one of the following documents:

• a copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020),
• a copy of medical records documenting the vaccination, a copy of immunization records from a public health or State immunization information system, or
• a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine.

Covered contractors may allow covered contractor employees to show or provide to their employer a digital copy of such records, including, for example, a digital photograph, scanned image, or PDF of such a record.

Covered employers should note that, unlike the forthcoming ETS applicable to employers with 100 or more employees, Executive Order 14042 does not provide for a Covid-19 testing alternative to achieve compliance. For existing contracts, employees must begin getting the first shot of a two-shot course by the end of October, to achieve full vaccination status by December 9.

In addition to the vaccine mandate, covered contractors must ensure that covered contractor employees and all visitors comply with published CDC guidance for masking and physical distancing while at a covered contractor workplace. The Task Force's guidance includes more details on masking and physical distancing requirements. Importantly, these safety protocols do not apply to the residences of covered contractor employees.

While the Biden administration indicated that the forthcoming ETS for employers with 100 or more employees would impose penalties of $14,000 or more on employers who fail to comply, nothing in Executive Order 14042 or current guidance indicates what the penalties would be for federal contractors who fail to comply; other than, obviously, failure to comply would place existing contracts in jeopardy and would result in an employer's failure to qualify to participating in bidding for future contracts.

What's Next?

For employers still unsure of their coverage status, further clarity may be forthcoming from the federal agencies or federal contractors with whom they contract. The guidance states that the Federal Acquisition Regulatory Council (FAR Council) must issue guidance for agencies by October 8, 2021 to add a clause related to these COVID-19 workplace safety protocols to covered Federal procurement solicitations and contracts subject to the Federal Acquisition Regulation (FAR) starting on October 15, 2021. Agencies that are responsible for covered contracts and contract-like instruments not subject to the FAR must also take swift action to ensure that covered contracts and contract-like instruments include the clause beginning on October 15, 2021.

Per the guidance, agencies are strongly encouraged to incorporate a clause requiring compliance with this Guidance into contracts that are not covered or directly addressed by the order because the contract is under the Simplified Acquisition Threshold (as defined in section 2.101 of the FAR) or is a contract or subcontract for the manufacturing of products, but must do so in accordance with applicable law. Agencies are also strongly encouraged to incorporate a clause requiring compliance with this guidance into existing contracts and contract-like instruments prior to the date upon which the order requires inclusion of the clause.

Based on the foregoing, it appears that the forthcoming FAR rulemaking may resolve some ambiguity in the current guidance about which contracts are covered; regardless, employers who do business with the federal government, or with federal contractors, should stay on top of ongoing developments, and look out for communications from their contracting agency or prime contractor, including amendments to existing contracts or contract-like instruments to expressly incorporate the vaccine mandate requirement.

Bottom Line for Covered Employers

Employers who are not certain about whether they are covered by Executive Order 14042 should seek advice based on review of their specific situations and contracts. In the meantime, all employers who are or who think they may be subject to coverage, should begin planning for implementation of vaccine mandates, in time to enable their workforce to achieve compliance on current contracts by December 8, 2021. This would include developing and implementing legally-compliant methodologies to obtain from of vaccine status for all employees, planning for an interactive process to handle exemption requests based on health issues and religious beliefs, and issuing workplace announcements letting employees know what is going on. As federal and state anti-discrimination and health data confidentiality laws, and possibly collective bargaining agreements, will be in play, it is recommended that employers seek the advice of experienced labor and employment attorneys in working through these issues.

Footnote

1. The Executive Order states that: "covered contractor employee" means 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 but does not include contractor employees who only perform work outside the United States or its outlying areas. "Covered contractor workplace" means 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.