The Safer Federal Workforce Taskforce (Task Force) has issued the anxiously anticipated guidance (Guidance) on the pending COVID-19 Workplace Safety requirements soon to be imposed on nearly every federal contractor and subcontractor. This is the first step in implementing Executive Order 14042 (Executive Order) and offers significant insight into what contractors should expect as these requirements work their way into their contracts.
In short, the Guidance makes clear that the vaccination mandates are going to be broadly applicable and require strict adherence with few exceptions. These mandates will be in addition to masking and physical distancing policies which were unexpectedly included in the Guidance. And large contractors should note that these requirements will be in addition to the pending OHSA Emergency Temporary Standard which we have covered here.
Below is a breakdown of the Guidance and what contractors will need to do to comply.
Contracts Covered by the Guidance
The Executive Order limited coverage of the vaccination mandates to the following types of “Covered Contracts”:
- Contracts for services, construction, or leasehold interests in real property;
- Contracts covered by the Service Contract Act (SCA);
- Concessions contracts excluded from coverage under the SCA; and
- Contracts issued in connection with Federal property or land offering services to federal employees, their dependents, or the general public.
Subcontracts at all tiers will be subject to these requirements via a mandatory flow down clause applicable to all subcontracts except those which are solely for the provision of products. Also excluded are grants, contracts with tribal entities, and contracts and subcontracts below the Simplified Acquisition Threshold.
The Guidance evidences a clear intent to impose a broad interpretation of Covered Contracts. These new rules will apply to all contracts issued under any Federal procurement statute (including those not subject to the FAR) and will include other types of bilateral instruments such as purchase orders, letter contracts, and basic ordering agreements. And agencies are “strongly encouraged” to impose these requirements on the contracts excluded in the Executive Order. So if you are a federal contractor or subcontractor, it’s a safe bet you’ll be subject to these requirements.
However, the timing of these requirements may result in some contracts avoiding coverage. Unquestionably, all contracts awarded after November 14, 2021 will incorporate the FAR clause implementing the vaccination mandates. But for contracts awarded before November 14, 2021, the clause will only be imposed upon the exercise of an option or other extension of the contract. And for contracts awarded between October 15 and November 14, 2021, agencies are encouraged—but not required—to include the FAR clause. Thus, contracts falling in those categories may avoid coverage. Still, contractors should keep in mind that contracting officers are being actively encouraged incorporate these standards into all contracts regardless of the period of performance. When in doubt, assume you will be subject to these requirements.
Contractor Employees Covered by the Guidance
Given the prevalence of remote work, many wondered if the vaccine mandates might be limited to contractor employees who work on government worksites. Instead, all employees who work “on or in connection with a Federal Government contract” will be considered “covered contractor employees” and thus subject to the vaccination mandate. And that’s the case even if they are 100% remote or otherwise never set foot in the contractor’s offices or a federal worksite.
Furthering the broad application of these rules, work performed “in connection with” a Covered Contract includes any and all activities necessary to performance, even those which are not within the contract’s scope of work. The Guidance dictates that employees in roles such as human resources, billing specialists, in-house legal counsel, and other employees who are not directly involved in contract performance are nevertheless subject to the vaccination mandates.
And the breadth of coverage doesn’t stop there. All employees at a “covered contractor workplace” will be subject to the vaccination requirements and that term includes any workplace at which a covered contractor employee “is likely to be present during the period of performance for a covered contract.” This means that all employees who report to a workplace in which Covered Contract performance occurs will need to be vaccinated, even if they have nothing to do with any Covered Contract. There is a limited exception to this when the contractor can affirmatively state that such employees will never come into contact with those working in connection with a Covered Contract, but few businesses will be able to qualify for that.
The only basis for which individual employees may avoid vaccination is through an accommodation granted on the basis of disability or a sincerely held religious belief, practice or observance. This narrow exception is certain to result in a deluge of accommodations requests which can be a contentious process. Contractors would do well to work with their attorney to develop strategies for handling such requests to avoid any compliance issues with these mandates as well as employee privacy and other protections.
Details on the Vaccination Mandates
The main drive of the Guidance is to maximize the vaccination rates among contractor employees and to that end, all covered contractor employees must be fully vaccinated by December 8, 2021 or the first day of the Covered Contract period of performance for contracts awarded after that date. “Fully vaccinated” is defined as two weeks after the employee has received their second dose of the Pfizer or Moderna vaccines or their single-dose Johnson & Johnson vaccine and contractors are responsible for confirming this status in all covered employees.
To do so, contractors must collect adequate proof of vaccination from all covered employees. Only the following types of proof of vaccination will be acceptable:
- a record of immunization from a health care provider or pharmacy;
- the CDC approved COVID-19 Vaccination Record Card;
- official medical records documenting the vaccination;
- immunization records from a public health or State immunization information system; or
- any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or site administering vaccine.
The Guidance is explicit that an employee’s sworn attestation of vaccination is not sufficient and if they have lost their proof of vaccination, they must contact their healthcare provider or state and local public health officials to obtain one of these types of proof of vaccination. And neither a prior COVID-19 infection nor regular negative tests may substitute for proof of vaccination.
It remains unclear whether these records will need to be provided to contracting agencies. However, contractors would do well to ensure they are able to quickly respond to any requests for proof of vaccination. To that end, the Guidance indicates that contractors must designate personnel to coordinate the implementation and compliance with the vaccination mandates. These designees will be responsible for compliance with these vaccination mandates as well as any other workplace safety protocols established by the Task Force or by local and state government officials.
Masking & Physical Distancing Requirements
The Executive Order made no mention of masking and physical distancing requirements so their inclusion in the Guidance was a bit of a surprise. Contractors will need to closely adhere to the CDC’s published guidance on workplace safety. This will impose restrictions on most contractor locations including outdoor workspaces, but the Task Force did thankfully exempt remote employees’ residences from these requirements.
The Guidance imposes differing requirements on contractor workplaces depending on the CDC’s “level of community transmission” in the county the workplace is located in. Contractors must check the CDC’s community transmission map weekly to confirm which level of standards apply to their workplaces and may be faced with a situation where differing standards apply to multiple workplaces.
If a workplace is in a county designated as having a “high” or “substantial” level of community transmission—which currently includes over 97% of US counties—then all employees and visitors to the workplace, including the fully vaccinated, must wear masks in all common areas and shared workspaces including conference rooms, break rooms (except when eating/drinking), and even in cubicles or other open office space. Fully vaccinated individuals don’t need to physically distance or wear a mask when outdoors or alone in an office with the door closed. However, unvaccinated individuals must wear a mask in all settings unless eating/drinking and even must be masked when outdoors if the outdoor setting is crowded or involves sustained close contact with other unvaccinated persons.
For unvaccinated individuals, the standards for workplaces in counties designated as having a “moderate” or “low” level of community transmission are effectively the same as in areas with heightened community transmission. But in these lower-risk areas, vaccinated individuals do not need to wear a mask nor physically distance even in indoor common areas.
What Contractors Should be Doing Now
Expectedly, the Guidance leaves many questions unanswered. Chief among them are what the penalties of non-compliance will look like and whether the costs of compliance with these mandates will be compensable through the Changes and Equitable Adjustment processes. Hopefully we will have answers to these questions soon. But until then, contractors would do well to begin preparing for these requirements by taking the following steps:
- Determine which contracts, employees, and workplaces will be covered by the requirements.
- Draft, disseminate, and implement a COVID-19 policy that aligns with the Guidance. This should include developing the process for collecting proof of vaccination and for requesting, reviewing, and granting employee accommodation requests.
- Appoint the required compliance coordinator personnel to handle collection of proof of vaccination and enforce masking and social distancing requirements.
- Install appropriate signage and notices of vaccination, masking, and physical distancing policies.
- Consider the implications of these requirements on employee paid leave, compliance with privacy laws, and employment issues inherent in the implementation of these measures.
- Create unique accounting codes to track all categories of expenses and increased costs associated with complying with these mandates. This will be critical for any contractor seeking to recover the costs of compliance from the government.
- And finally, keep in consistent contact with experienced government contracting and employment attorneys to stay on top of these developments and ensure compliance with these developing requirements.
ABOUT ANDRÉS VERA
Andrés Vera’s practice is concentrated on federal contracting and general corporate law. With a focus on small business government contracting, he is well positioned to advise start-ups and small businesses seeking to enter the complex federal procurement landscape. His experience as a former clerk in the U.S. Small Business Administration’s (SBA) Office of Procurement Law allows him to counsel clients on compliance with the agency’s 8(a), HUBZone, Woman-Owned, and Service Disabled Veteran-Owned (SDVO) programs. He also advises federal contractors and subcontractors in bid protests, contract disputes with federal agencies, and general corporate administration. Prior to law school, Andrés was himself a government contractor for the U.S. Agency for International Development.
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