On September 24, 2021, the Safer Federal Workforce Task Force issued guidance for federal contractors and subcontractors concerning various safety protocols (the Guidance) as required by President Biden’s Path Out of the Pandemic and Executive Order 14042 (the Order). The stated purpose of the safeguards set forth in the Guidance are to decrease the spread of COVID-19, which will decrease worker absences, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal Government.
As a threshold matter, the Order does not apply to all federal contractors. Specifically, the Order applies to contracts for services, construction, or leasehold interest in property; services covered by the Service Contract Labor Standards; concessions; and work relating to federal property lands and related to offering services for federal employees, their dependents, or the general public. The Order specifically excludes grants, contracts or contract-like instruments with Indian Tribes, contracts with a value equal to or less than the FAR simplified acquisition threshold (currently $250,000), employees performing work outside the United States, and subcontracts solely for the provision of products. However, the Guidance also strongly encourages agencies to incorporate clauses requiring compliance with the Order into contractors that are not covered or directly addressed by the Order.
Further, the requirements apply only to a covered contract, which is defined as one that includes a provision that the contractor will “comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.” Stated differently, simply being a federal contractor does not mean all employees must be vaccinated by the deadline. Instead, the requirements apply to any new solicitations issued on or after October 15, 2021, the option to extend an existing contract on or after October 15, 2021, and new federal contracts awarded on or after November 15, 2021. However, agencies are again strongly encouraged to incorporate a clause requiring compliance with the Order into existing contracts and contract-like instruments prior to the date upon which the Order requires inclusion of the clause.
The Guidance focuses on the following three main areas:
- Vaccination mandate
- Covered employees of covered federal contractors and subcontractors must be fully vaccinated against COVID-19 by December 8, 2021. There is no testing alternative to the vaccination requirement.
- Fully vaccinated under the Order is defined as two weeks after a final dose of a one- or two-dose COVID-19 vaccine approved for regular or emergency use by the FDA or WHO. The Guidance states the definition of fully vaccinated may be updated if the CDC updates its definition of fully vaccinated, possibly to account for booster shots.
- Covered contractor employees include full and part time employees and employees working remotely. Employees working at a covered contractor workplace are covered even if the employees are not directly working on a covered contract, unless the individuals will not come into contact with a covered contractor employee, including in common areas (lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, parking garages, etc.).
- Covered contractors and subcontractors should provide legally-entitled accommodations for disability, religious belief, and certain medical reasons. However, the Guidance does not provide details on what a reasonable accommodation may be.
- If there is an urgent, mission-critical need for a covered contractor to have covered contractor employees begin work on a covered contract or at a covered workplace before becoming fully vaccinated, the agency head may approve an exception for the covered contractor. In such case, the covered contractor must ensure these covered contractor employees are fully vaccinated within 60 days of beginning work on a covered contract or at a covered workplace.
- The Guidance requires covered contractors to review covered contractor employees’ vaccinations status and to require covered contractor employees to show or provide: (a) an immunization record from a healthcare provider or a pharmacy; (b) a COVID-19 vaccination record card; (c) medical records reflecting vaccination; (d) state/public health immunization records; or (e) other official document verifying vaccination status with the vaccine name, date of administration, and the name of the professional or clinic administering the vaccine. Importantly, a self-attestation is not an acceptable form of vaccination proof.
- Prior infection/antibody results are not a substitute for the Order’s vaccination requirement.
- The Order expressly supersedes state and local laws prohibiting mandatory vaccines, masking, and distancing, but defers to more restrictive state and local laws.
- If a company is within the scope of the Order and the forthcoming Emergency Temporary Standard from OSHA for employers with 100 or more employees, it must comply with the Order.
2. Masking and physical distancing requirements
- Covered contractors and subcontractors must require masking indoors for all individuals (including fully vaccinated employees and visitors) if there is high or substantial community transmission, per the CDC. If there is a low or moderate transmission, fully vaccinated workers may forego masks.
- Unvaccinated individuals must social distance indoors “to the extent practicable.” Fully vaccinated individuals do not need to physically distance, regardless of the level of transmission in the area.
- Covered contractors and subcontractors may provide limited exceptions to masking and social distancing. For example, individuals need not wear masks or social distance when alone, when eating or drinking, or if necessary given the workers’ duties (e.g., high intensity activities) or because of a legally-entitled accommodation.
3. COVID-19 workplace safety coordinator
- Covered contractors and subcontractors must designate a COVID-19 Workplace Safety Coordinator. The designated individual (or individuals) must ensure that information on required COVID-19 workplace safety protocols is provided to covered contractor employees and all other individuals likely to be present at covered contractor workplaces (e.g., by communicating the required protocols and related policies by email, websites, memoranda, flyers, or other means and posting signage at covered contractor workplaces that sets forth the requirements and workplace safety protocols in a readily understandable manner).
- The designated individual (or individuals) must also ensure that covered contractor employees comply with the requirements related to the showing or provision of proper vaccination documentation.
The Guidance broadly applies to federal contractors and subcontractors, and contractors should review their federal contracts or subcontracts to determine if they are in the scope of the Order. Contractors should also be aware that several states have issued similar requirements and should check state and local requirements on COVID-19 vaccination, testing, or masking directives. Contractors should plan to update their COVID-19 policies and programs to ensure compliance with any applicable federal or state requirements.
If you are a contractor or subcontractor with questions regarding the Guidance, President Biden’s “Path out of the Pandemic” plan, the Order, or any state or local vaccine requirement, Reed Smith’s experienced Labor & Employment Group is ready to speak with you.