Publication

On September 24, 2021, the Safer Federal Workforce Task Force issued its guidance (the “Guidance”) on implementing President Biden’s Executive Order 14042 on Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO 14042”). As expected, for covered contracts over $250,000, the Guidance made clear that covered employees will be required to be fully vaccinated and there will not be an option for frequent testing in lieu of vaccination. There will be an exception for those requiring disability or religious accommodations. Beyond that certainty and the establishment of December 8, 2021, as the date on which all covered employees must be fully vaccinated, the broadly worded Guidance should put all federal contractors/subcontractors on notice that regardless of number of employees, value of contract, or type of contract, there is at least a possibility that they will be subject to some vaccination requirement. There already have been federal court complaints filed contesting the constitutionality of EO 14042, and requesting immediate injunctive relief, and we expect there may be more challenging the Guidance. The remainder of this Alert will discuss what we know and what issues remain open for further guidance and interpretation.

What contractors are covered? EO 14042 only mandates agencies to require compliance with the Guidance by contractors who enter into a covered contract on or after October 15 and have a contract or contract-like instrument of the following types: procurement contracts or contract-like instruments for services, construction, or a leasehold interest in real property; contracts or contract-like instruments for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.; contracts or contract-like instruments for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); or contracts or contract-like instruments entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.

While the enumeration of covered contracts is similar to Executive Orders on Minimum Wage and Paid Sick Leave, unlike the way those Orders have been implemented, EO 14042 does not appear to be limited to service contracts subject to the Service Contract Act or construction contracts subject to the Davis Bacon Act. Accordingly, contractors providing services or working on federal construction projects can expect to see the vaccination clause in their contracts over $250,000 (which is the general Federal Acquisition Regulation (“FAR”) Simplified Acquisition Threshold applicable to most contracts) issued after October 15, if not before.

Manufacturing contractors and smaller service or construction contractors must also remain vigilant. Consistent with the EO, the Guidance not only permits, but strongly encourages executive branch agencies, such as Department of Defense, and independent establishments such as the Consumer Product Safety Commission, to incorporate a clause into contracts not otherwise covered, including “a contract or subcontract for the manufacturing of products,” contracts with a value of $250,000 or less, and contracts signed before October 15.

As a result, any contractor at any level with a contract including a clause requiring compliance with “guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force” will be a covered contractor and is expected to comply with the Task Force Guidance. While grants and certain contracts with Indian Tribes remain excluded, there appears to be no limit at this time as to what other type of federal contract may include this language.

Additionally, the Guidance strongly encourages covered contractors to support the vaccination mission by incorporating a mandate into their non-covered contracts with those who perform work at a covered contractor workplace but who do not work on or in connection with a federal contract, such as contracts or agreements related to the provision of food services, onsite security, and groundskeeping.

When does coverage start? EO 14042 requires covered contracts entered into after October 15, 2021, to have the clause mandating vaccinations. However, agencies are encouraged to work to include compliance with the safety protocols in contracts before October 15 and to take any allowable action to modify existing contracts to bring them into compliance. Contractors currently holding indefinite delivery vehicles or master purchase agreements should be aware that job letters, task orders, and purchase orders under those existing contracts are considered contracts or contract-like instruments and those issued after October 15 most likely will include the vaccination requirement.

Who must be vaccinated? All full-time and part-time employees working on or in connection with a covered contract (including fully remote employees but excluding employees solely performing work outside the United States) must be fully vaccinated. In addition, the vaccination requirement extends to the contractor’s full-time and part-time employees working in the same workplace as an employee working on or in connection with a covered contract, even if the other employees are not working on or in connection with a covered contract.

Who works “in connection with” a covered contract? Any employee who performs duties necessary to the performance of a covered contract, even if not directly engaged in the performance of duties required under the federal contract. Frequent examples cited by the Guidance of duties in connection with covered contracts include human resources, IT, billing, and legal review. For example, this would encompass employees servicing government vehicles and also the administrative staff overseeing the operation of those services.

Does the Guidance address multi-floor / multi-zone workplaces? The FAQs make clear that all covered contractor employees at a worksite (even if the worksite contains multiple floors or separate buildings on the same campus) are required to be fully vaccinated even though not all (and perhaps even very few) employees are performing work on or “in connection with” a covered contract. The limited exception is if the covered contractor affirmatively determines that there will be no interactions between covered contractor employees and non-covered contractor employees during the performance of the contract (including even interactions through use of common space such as elevators, lobbies, stairwells, dining areas, and parking garages). For example, if a covered contractor occupies an 80-floor building and only one floor performs work on the federal contract, the remaining 79 floors of employees would still be subject to the vaccination requirement unless the covered contractor can figure out a way to avoid complete interaction with those working on the covered contract. On the other hand, contractors that rent only part of one of the 80 floors in a building are not responsible for interactions in the building common areas, only the areas they control.

By when must employees be vaccinated? Covered contractor employees must be fully vaccinated by December 8, 2021, which means the employee must have received their one-dose vaccine or the last dose of their two-dose vaccine two weeks prior, on or before November 24, 2021. There also are provisions for employees entering U.S. workspaces who received vaccines listed for emergency use by the World Health Organization or were vaccinated as part of a drug trial. After December 8, 2021, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, an exercised option or extended or renewed contract. Recognizing that there may be a time that booster shots are necessary to maintain fully-vaccinated status, the Guidance will be updated if the CDC issues new rules.

Are there exceptions? An employee may be granted an exception to the vaccine requirement if the employee cannot receive the vaccine due to a disability (which includes medical conditions) or a sincerely held religious belief. The employer is required to determine the appropriate accommodation and whether an accommodation is required. The Guidance does not address many implementation questions. For example, will letters from naturopathic specialists, acupuncturists, or other alternative health care providers be acceptable documentation for a disability accommodation request? Or, for religious accommodations, will an attestation from the employee be sufficient? What documents must be retained and how liberal contractors can be with allowing accommodations also remain unclear. However, contractors may be obligated to retain records under other laws. An employee receiving a disability or religious accommodation must wear a mask indoors and in outdoor crowded settings, as well as socially distance. Employees working on mission-critical contracts may also be given a longer timeline to get vaccinated if approved by the agency head. There is no specific exception available for someone who has antibodies due to a prior COVID-19 infection, which is one of the points being challenged in the pending lawsuits.

Can we test those who are not fully vaccinated as an alternative? Generally, no, although testing may be considered as an accommodation for those who received exemptions for a disability or sincerely held religious belief (along with masking and physical distancing).

What proof of vaccination is required? Requiring only an attestation is not enough to show proof of vaccination. Covered employees are required to “show or provide” a paper or digital copy of: (1) the record of immunization from a health care provider or pharmacy; (2) a copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020); (3) a copy of medical records documenting the vaccination; (4) a copy of immunization records from a public health or State immunization information system; or (5) 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. The Guidance does not strictly require an employer to retain a hard or digital copy of the “proof”, but employers will need to demonstrate compliance, and retaining copies may be the best option. According to the EEOC, however, such records are confidential medical records and must be stored in confidential files. Employers who previously relied on an employee’s attestation out of concern that vaccine cards are easily duplicated will need to now require additional proof satisfying the Guidance’s standard.

Does this also include a mask mandate? Yes, it does, for both employees and visitors, as follows:

• In areas of high or substantial transmission, fully vaccinated people (employees and visitors) must wear a mask in indoor settings, except as authorized by CDC guidance or due to workplace safety concerns. Covered contractors must check the CDC COVID-19 Data Tracker County View weekly to make these determinations.
   
• In areas that have maintained low or moderate transmission for at least two consecutive weeks, fully vaccinated people (employees and visitors) do not need to wear a mask indoors or outdoors.
   
• Employees and visitors who are not fully vaccinated must wear masks indoors and in crowded outdoor settings or during outdoor activities that involve sustained close contact with other people who are not fully vaccinated. Individuals who are not fully vaccinated also must physically distance.
   
• Individuals with a disability or religious belief that prohibits mask-wearing may receive an alternate accommodation, if available.
   
• Fully vaccinated individuals do not need to physically distance regardless of transmission level and location.
   
• Contractors may allow exceptions to mask-wearing and distancing consistent with CDC guidance (e.g., while eating or drinking, when in an office with floor to ceiling walls and a closed door).
   
• If the CDC guidance for mask-wearing and distancing changes, these requirements will likely be updated accordingly.
   
• The Guidance has specifications concerning what types of face covering will satisfy the mask mandate and should be consulted when developing the policy for visitors and unvaccinated employees.

Who is responsible for compliance? The contractor must designate a person or person(s) to coordinate implementation and comply with the SAFER Guidance by a variety of means specifically listed in the Guidance. Further, a prime contractor is required to include the appropriate SAFER Guidance clause in any subcontracts but, unlike the Service Contract Act, up-stream contractors do not appear to have liability for their subcontractors’ violations of EO 14042. Contractors will incur expenses in connection with complying with the new requirements. The Guidance is silent on the extent to which these new costs can be chargeable to the government or result in equitable adjustments.

Does the Guidance apply to visitors? The vaccine mandate does not apply to visitors, but covered contractors are required to post signage at entrances on safety protocols for fully vaccinated and not fully vaccinated individuals, including masking and physical distancing protocols.

Can this Guidance change? Yes. The SAFER Task Force may change guidance from time-to-time and covered contractors will be required to adhere to the new guidance for existing contracts.

Do covered contractors in states with vaccine passport restrictions need to comply? The Guidance FAQs takes the position that this Guidance supersedes any contrary state or local law or ordinance.

Will I still need to comply with OSHA’s Emergency Temporary Standard (ETS) when that is issued? Employers will need to comply with both as applicable, except where they conflict, employers will need to follow the stricter standard.

What should federal contractors do next?

• For those contractors unquestionably covered by the mandate (e.g., those who regularly enter into contracts over the simplified acquisition threshold to perform services), immediately begin identifying which worksites and employees will be required to be fully vaccinated, create a communication strategy, and develop an accommodation request process. Additionally, notify your purchasing and contracting staff that a new flow-down clause must soon be included in your agreements with your subcontractors. Finally, identify a COVID Czar for each covered workplace and develop plans for all necessary tracking (such as checking the CDC guidance at least weekly to determine the community transmission rate for the workplace).
   
• For all other federal contractors, vigilantly review any prime or subcontracts for any language requiring compliance with the Guidelines.
   
• Contractors who anticipate being covered after November 24, 2021, should carefully watch the supply of available vaccines in the geographic areas where they will have covered workspaces to be sure they are ready to staff the contracts with fully vaccinated employees on day one.