Hello again, dear readers. Checking in with more updates as the ongoing saga surrounding the COVID-19 Safety Protocols continues... (Please check out our previous coverage on the Original Guidance and the various updates through November 4 for more background).
On November 10, the Safer Federal Workforce Task Force published, on their website, an updated Guidance sheet, as well as additional Q&A on the "Contractors" FAQ page. These updates incorporate the vaccination deadline extension set forth in the November 4, 2021, White House Statement (which we discussed in our last post), with a couple of other small additions. Here's what you need to know.
Last Dose of Vaccination By January 4, 2022 / "Fully Vaccinated" by January 18, 2022
As discussed in our previous posts, one of the aspects of the Guidance is a vaccination mandate for federal "covered contractor employees," which is defined very broadly. The original Guidance required covered contractor employees to be fully vaccinated by December 8, 2021; after that, they had to be vaccinated by the first day of performance of a covered contract. Because "fully vaccinated" was defined as being two weeks out from your final vaccination dose, that really meant that everyone had to have their last dose by November 24. On November 4, the White House put out a statement announcing the OHSA ETS and CMS rules relating to vaccination. (Note: These two new rules are separate and independent from the Federal Contractor COVID Guidance, but the OSHA ETS rule - if the current temporary stay is lifted - may apply to some Federal contractors. More on that in our last post). As part of that statement, and in an effort to make the vaccination deadlines consistent across all rules, the deadline for Federal contractor covered contract employee vaccinations was pushed. Specifically, the statement provided that "Employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose - either their second dose of Pfizer or Moderna or a single dose of Johnson & Johnson - by January 4, 2022." As we correctly pointed out at the time, if covered contractor employees had to have the last dose by January 4, this meant that the deadline to be "fully vaccinated" (remember, fully vaccinated is defined as 2 weeks from your last dose) was really January 18. In the updated Guidance sheet, the Task Force confirms:
"Covered contractor employees must be fully vaccinated no later than January 18, 2022. 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." The "Workplaces" section of the Contractors FAQ updated the language relating to Federal Workplaces for consistency, as well: "Because covered contractor employees working on a covered contract need to be fully vaccinated after January 18, 2022, covered contractor employees who work only at a Federal workplace need to be fully vaccinated by that date as well, unless legally entitled to an accommodation."
Sample Signage - The Masking/Physical distancing requirements contained in the original Guidance/previous FAQ included a requirement that covered contractors create signage, providing information on safety protocols for employees and visitors. (See our original Client Alert, pp. 7-8). The November 10 updates to the Contractors FAQ page of the Task Force website, in the "Safety and Protocols" section, include some more guidance on that front:
Q: Is there sample signage that a covered contractor can post at entrances to covered contractor workplaces providing information on safety protocols?
A: Yes. Covered contractors should post signage at entrances to covered contractor workplaces providing information on safety protocols for fully vaccinated and not fully vaccinated individuals and instruct individuals to follow the appropriate workplace safety protocols while at the covered contractor workplace. Sample signage for areas of high or substantial levels of community transmission can be found here. Sample signage for areas of low or moderate levels of community transmission can be found here.
The links thus provide contractors with examples of the types of signage they should be posting for areas of both high/substantial and low/moderate community transmission.
Updates on List of Circumstances that the CDC Recommends Delaying Vaccination
The Guidance had previously been updated to provide some additional direction on contra-indicated medical conditions and pregnancy concerns in relation to medical accommodations, as well as the limited circumstances in which an employer might be able to extend the vaccination deadline for an individual employee based on medical reasons not rising to the level of a "disability." The (non-exhaustive) list of medical conditions that can justify such an extension has now been further updated. You can find this list in the "Vaccination and Safety Protocols" section of the Contractors FAQ. These considerations are quite fact-specific and to the extent you have questions, you should discuss your individual situation with your attorney. Moreover, keep in mind that, those employees who are not vaccinated due to medical/religious accommodations or individually-extended vaccination deadlines, will have to comply with masking/physical distancing requirements for unvaccinated individuals. They could also be denied access to Federal Workplaces ("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.") This is something to consider, in terms of impact on your ability to perform your contracts.
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.
