The authors of this article discuss the Safer Federal Workforce Task Force guidance, which includes vaccine mandates for government contractors and subcontractors, and more.

President Biden issued an executive order on September 9, 2021 charting a path for implementing COVID-19 safeguards for government contractors ("EO"). The first step in that process was for the Safer Federal Workforce Task Force ("Task Force") to issue guidance approved by the Director of the Office of Management & Budget ("OMB"). On September 24, 2021, pursuant to that directive, the Task Force issued extensive guidance ("Guidance"),1 which includes vaccine mandates for government contractors and subcontractors.

Although the guidance resolves several lingering questions, others remain and will presumably be addressed through implementing regulations issued by the Federal Acquisition Regulation ("FAR") Council and agency-specific clauses for contracts and contract-like instruments not covered by the FAR.


Vaccine Mandate v. Other Safeguards

Perhaps most significantly, the vaccine mandate is employee specific while other safeguards (i.e., masking and social distancing) are workplace-specific. The vaccine mandate applies to all covered contractor employees—including those who work remotely.2 The other safeguards apply only to covered contractor workplaces and do not extend to personnel working remotely.3 However, those other safeguards apply to all persons in covered contractor workplaces—including persons who are not employees and do not support government contracts.

Covered Contracts

The Guidance adopts the EO's definitions of covered contracts. However, the Guidance provides clarity on the timing. The safeguards must be incorporated into solicitations for covered contracts issued after October 15, 2021 and into new covered contracts issued on or after November 14.4 The Guidance also makes clear that these safeguards must be flowed down to all subcontracts at all tiers of the supply chain unless the subcontracts are solely for products.5

Covered Contractor Employees

Persons are covered contractor employees if they (1) work on or in connection with a covered contract (even if they work remotely) or (2) work at a covered contractor workplace. In other words, the Guidance applies to all employees who work at a worksite where work is performed on a covered contract, even employees who do not themselves work on or in connection with the contract.6 Covered contractor employees do not include independent contractors, visitors, or employees of third parties that are not subcontractors supporting covered contracts, though the Guidance encourages contractors to extend requirements to such persons.7


* Kristen E. Ittig is a partner at Arnold & Porter Kaye Scholer LLP counseling and representing clients in government contracts matters, including compliance counseling, bid protests, investigations, audits and self-disclosures, claims and disputes, terminations and other issues impacting government contractors and federal grantees. Joshua F. Alloy is a counsel at the firm handling all aspects of labor and employment matters involving day-to-day counseling, transactions and litigation. Thomas A. Pettit is an associate at the firm representing government contractors across industry sectors facing a range of government contracting challenges, including litigation, transactions, cybersecurity compliance and investigations. The authors may be reached at, and, respectively.

1 20210922.pdf.

2 Guidance at 5 ("Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation."); id. at 11 (Q 11: 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.").

3 Id. at 6–7 (imposing mask and social distancing requirements in covered contractor workplaces).

4 Id. at 11–12.

5 Id.

6 Id. at 3–4 (emphasis added).

7 Id. at 6 ("Covered contractors are strongly encouraged to incorporate similar vaccination requirements into their non-covered contracts and agreements with non-covered contractors whose employees perform work at covered contractor workplaces but who do not work on or in connection with a Federal contract, such as those contracts and agreements related to the provision of food services, onsite security, or groundskeeping services at covered contractor workplaces.").

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Originally Published by Lexis Nexis

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