On September 24, pursuant to President Biden's September 9 Executive Order, the Safer Federal Workforce Task Force published its anticipated guidance regarding the vaccination mandate and COVID-19 safety requirements for federal contractors and subcontractors (the Guidance). The vaccine requirement for federal contractor employees is part of President Biden's six-prong "Path Out of the Pandemic Plan," as summarized in a prior WilmerHale alert here. The Guidance details the parameters of the vaccination requirement, as well as other masking and distancing protocols federal contractors must implement. Notably, there is no test-out option for covered federal contractor employees, and even fully remote employees will be subject to the vaccination rule.
Pursuant to the 14-page Guidance, all "covered contractor employees" must be fully vaccinated by December 8, 2021, unless the employee is legally entitled to a religious or medical exemption.1 There is no testing alternative for employees who choose to forgo vaccination.2 Individuals are considered "fully vaccinated" two weeks after receiving the final dose of an approved vaccine. There is currently no post-vaccination time limit on fully vaccinated status and no requirement for boosters.
The vaccine mandate covers any full-time or part-time employee working "on or in connection with" a government contract. This includes employees working remotely from a private residence on or in connection with a covered contract, as well as employees who might be only indirectly engaged in supporting the government contract, such as those in human resources, information technology, billing and legal review functions.
Additionally, the vaccine mandate applies to all employees at "workplace locations" where covered employees are "likely to be present," including both the contractor's workplace (even outdoor workplaces) and federal workplaces. Accordingly, if some employees at a given workplace are performing services in connection with a government contract, all employees at the location, regardless of job duties or connection to the government work, must be vaccinated.3
Covered contractors are responsible for determining employee vaccination status and must review their employees' vaccination documents (but need not collect and retain such proof). Acceptable proof includes a Centers for Disease Control and Prevention (CDC) Vaccination Record Card, medical records or state or public health immunization records. An employee's self-attestation is not sufficient.
The Guidance specifies that covered contractors may be required to provide exemptions for their employees who are not vaccinated due to a medical condition (regardless of whether the condition is considered a "disability") or a sincerely held religious belief, practice or observance. Covered contractors are responsible for reviewing exemption requests and considering what, if any, accommodation they must provide for their employees. This is true even if the employee works at a federal worksite. However, if the contracting agency is considered a "joint employer," the agency and the covered contractor will need to work together to determine whether an accommodation is appropriate for the employee.
Covered contractors do not need to provide on-site vaccination for their employees. Nor are they required under the Guidance to provide paid time off for vaccination, although they may be required by applicable state law to provide such leave. Additionally, requirements for vaccination leave may be included in the anticipated Occupational Safety and Health Administration (OSHA) regulations for large employers.
Contractor employees will become subject to the new rules when the forthcoming clause is included in a contract at the time of a new award, option exercise or contract extension. Employees who become covered in the initial rollout of the new rules must be vaccinated by December 8, although agencies have discretion to approve exemptions for certain employees where there is "an urgent, mission-critical need" for an employee to begin work before being fully vaccinated. In such cases, the unvaccinated employee must be fully vaccinated within 60 days of beginning work on the covered contract or at the covered workplace. For employees covered as a result of subsequent awards, options or extensions, covered employees must be vaccinated before the beginning of the performance period of the award, option or extension.
Masking and Physical Distancing
Covered employers must ensure that all individuals at covered workplaces, including all visitors, comply with CDC guidelines for masking and physical distancing.
Unvaccinated individuals should, to the extent practicable, maintain a distance of at least six feet from others at all times. Fully vaccinated individuals are not required to maintain physical distance.
In areas of substantial or high community transmission, as determined by the CDC, all visitors and employees must wear masks indoors, regardless of vaccination status.4 In areas of low or moderate community transmission, fully vaccinated people do not need to wear masks. Covered contractors must check the CDC Data Tracker website weekly to determine the status of the applicable counties for their worksites. When an area increases from low/moderate to substantial/high transmission, the covered contractor must immediately implement the heightened masking protocols. When an area decreases from substantial/high to low/moderate transmission, the transmission rate must remain at the lower level for at least two consecutive weeks before the covered contractor implements the loosened masking protocols.
As in prior federal guidance, there are exceptions to the masking rules, including when an individual is alone in an enclosed office, when an individual is eating or drinking and maintaining appropriate distance, where masks would pose a workplace health or safety risk, or when an individual cannot wear a mask due to a medical condition or religious belief.
COVID-19 Safety Coordinator
Covered contractors must designate a person to coordinate implementation and compliance with the requirements of the Executive Order. This COVID-19 safety coordinator must ensure that information regarding the required workplace safety protocols, including the vaccine mandate, is provided to covered employees and all other individuals likely to be present at covered workplaces. The COVID-19 safety coordinator should also be responsible for reviewing proof of vaccination documentation.
As stated in the initial Executive Order, the vaccination and other safety protocols will be applied through any new or renewed contract or contract-like instrument if the contract is (1) for services, (2) for construction, (3) for a leasehold interest in real property, or (4) in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public. Importantly, the Executive Order does not apply to contracts or subcontracts solely for the provision of products, and the Guidance does not apply to covered contractor employees who perform work outside the United States.
For contracts that are procurements under the Federal Acquisition Regulation (FAR), the COVID-19 safety rules will be imposed through a standard contract clause that is expected to be issued by October 8 so that it can be incorporated into FAR-covered contracts. The clause will include a mandatory flow-down provision that will impose the same rules on subcontractors at all tiers.
The Executive Order establishes a gradual phase-in for incorporating these contractual requirements. For contracts entered into prior to October 15, the requirements will be incorporated into the contract only when an option is exercised or an extension is made. After November 14, the requirements must be incorporated into all new contracts. Between October 15 and November 14, agencies are encouraged to include the new contract clause but are generally not required to do so.
Coordination With Other State and Federal Requirements
The Guidance specifies that the vaccine mandate, as well as the other safety protocols in the Executive Order, supersedes any contrary state laws or local ordinances. This means that federal contractors with employees in Montana, a state which has prohibited employers from discriminating against unvaccinated employees, must comply with the federal mandate. However, covered contractors are not excused from complying with more-protective workplace safety protocols imposed by state and local governments. Similarly, covered contractors with more than 100 employees will need to follow the mandatory vaccination protocols in this guidance even though the forthcoming OSHA Emergency Temporary Standard (ETS) will include a testing alternative.
Covered contractors should take steps now to prepare for implementing the new requirements. WilmerHale government contracting, labor and employment, and environmental/OSHA lawyers will continue to monitor updates related to the Biden Administration's Path Out of the Pandemic Plan and are available to assist federal contractors and subcontractors and other employers with their compliance obligations, including under the forthcoming OSHA ETS.
1 Vaccination will be required even for employees who have recovered from a prior COVID-19 infection.
This is in contrast to employees covered by the forthcoming OSHA Emergency Temporary Standard for employers with 100 or more employees, who will be permitted to "test out" of the vaccine mandate.
3 The Guidance sets out a limited exception for situations where a federal contractor can affirmatively determine that there will be no contact between covered employees and non-covered employees, including brief contact in common areas such as lobbies, elevators, stairwells, restrooms, cafeterias or parking garages.
4 As of the date of publication, over 97% of counties nationwide are considered areas of substantial or high community transmission.
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