On September 24, 2021, the Safer Federal Workforce Task Force issued its COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. This was part of President Biden’s Path Out of the Pandemic: COVID-19 Action Plan, announced in early September. The Guidance requires covered contractors to conform to specific workplace safety protocols, including requiring proof of vaccination of many, if not all, of their employees. Additionally, covered contractors are required to “flow down” the contract clause to their subcontractors. Federal contractors should begin to immediately take steps to comply with this new Guidance, which may be incorporated into their contracts as early as October 15, 2021.
Mandatory Vaccinations
The Guidance requires covered contractors to ensure that all covered contractor employees are fully vaccinated for COVID-19, with limited exceptions where the employee is legally entitled to an accommodation.
- Who is a covered contractor?
A covered contractor is a prime contractor or subcontractor at any tier who is a party to a covered contract. The only exception is for subcontracts solely for the provision of products.
- What is a covered contract?
A covered contract is any contract that includes a clause that specifies that the contractor or subcontractor shall, for the duration of the contract, comply with the Guidance. It is easier to list what types of contracts the clause will not be included in. The Executive Order set forth the following narrow categories of contracts that would not be required to include the new clause: (i) grants; (ii) contracts, with Indian Tribes under the Indian Self-Determination and Education Assistance Act; (iii) contracts or subcontracts in which the value is equal to or less than the Simplified Acquisition Threshold; (iv) employees who perform work outside the United States or its outlying areas; and (v) subcontracts solely for the provision of products.
However, the Guidance strongly encourages federal agencies to incorporate a clause requiring compliance with this Guidance into contracts that are not covered because the contract is under the Simplified Acquisition Threshold or is a contract or subcontract for the manufacturing of products.
- When will the clause be included in a contract?
By October 8, 2021, the FAR Council will issue guidance to federal agencies to begin including a clause related to this Guidance in covered contracts starting on October 15, 2021. The latest dates that a clause will be added to covered contracts are as follows:
- Contracts awarded prior to October 15, 2021 – Must be incorporated at the point at which an option is exercised or an extension is made. Agencies are strongly encouraged to incorporate the FAR clause prior to the date upon which the Executive Order requires inclusion of the clause.
- Contracts awarded between October 15, 2021 and November 14, 2021 – Agencies must include the clause in the solicitation and are encouraged to include the clause in contracts awarded during this time period.
- Contracts awarded on or after November 14, 2021 – The clause must be incorporated into contracts awarded on or after this date.
- Who is required to be vaccinated?
The Guidance requires three different categories of employees to be vaccinated (which we will refer to as Categories A, B, and C, below), with limited exceptions for legally recognized reasons such as disability or religious objections:
- Category A: Any full-time or part-time employee of a covered contractor working on a covered contract (even if the employee works 100% from home).
- Category B: Any full-time or part-time employee of a covered contractor working in connection with a covered contract (even if the employee works 100% from home).
- “In connection with” means employees who perform duties necessary to the performance of the covered contract, but are not necessarily engaged in the specific work called for by the covered contract, such as human resources, billing, and legal review.
- Category C: Any full-time or part-time employee of a covered contractor who is working at a covered contractor workplace. This includes employees who are not themselves working on or in connection with a covered contract.
- A “covered contractor workplace” means a location controlled by a covered contractor at which any Category A or Category B employee is likely to be present at any time during the period of performance for a covered contract. (Even if they just bump into each other in an elevator or parking garage, this counts!) Given the broad definition, in many instances, this will be a contractor’s entire workforce.
Employers must review covered employees’ documentation to prove vaccination status; employee attestations are not acceptable substitutes.
- By what date do covered contractor employees need to be fully vaccinated?
Covered contractor employees must be fully vaccinated (two weeks past final dose) by December 8, 2021, except in limited circumstances where a reasonable accommodation is legally required. Because the agency can (and is encouraged to) incorporate the FAR clause at any time before the next option period, contractors should consider requiring their entire covered contractor employee workforce to be vaccinated by December 8, 2021, to ensure there is no lapse in service due to lack of vaccinated personnel.
Workplace Safety
In addition to the requirement for all covered contractor employees to be vaccinated, the Guidance also sets forth a number of requirements aimed at maintaining a safe workplace. Covered contractors must designate at least one individual to ensure that these required safety protocols are provided to covered contractor employees and all other individuals likely to be present at covered contractor workplaces. The designated individual is also responsible for ensuring compliance with the Guidance related to the showing or provision of proper vaccination documentation.
Covered contractors must ensure that all individuals, including employees and visitors, in a covered contractor workplace comply with the masking and physical distancing requirements:
- Fully Vaccinated Individuals
- Must wear a mask in indoor settings in areas of high or substantial community transmission.
- Do not need to wear masks in areas of low or moderate community transmission.
- Do not ever need to maintain physical distance.
- Individuals Who Are Not Fully Vaccinated
- Must wear a mask in all indoor settings, regardless of community transmission.
- Must wear a mask in crowded outdoor settings.
- Must wear a mask during outdoor activities that involve sustained close contact with other people who are not fully vaccinated.
- To the extent practicable, must maintain at least 6 feet of physical distance from others at all times.
- Limited Exceptions to Masking
- When an individual is alone in an office with floor to ceiling walls and a closed door.
- For a limited time when eating or drinking and maintaining appropriate distancing; lowering masks briefly for identification purposes.
- Additional limited exceptions: There are limited exceptions where wearing a mask may pose a risk to workplace health, safety, or job duty. Such exceptions must be approved in writing by a duly authorized representative of the covered contractor.
Covered contractors are also required to check the CDC COVID-19 Data Tracker County View website weekly to ensure they are following proper workplace safety protocol based on the level of community transmission for their covered contractor workplaces.
Relationship to Other Laws, Regulations, and Mandates
Covered contractor employees working at a Federal worksite must also comply with any additional agency workplace safety requirements for that workplace. Covered contractors must also comply with any State or local laws that are more protective than this Guidance, but the Guidance states that it supersedes any contrary State or local law or ordinance.
If you have any questions regarding the Safer Federal Workforce Task Force’s COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, please contact Berenzweig Leonard’s attorneys for additional information.
Stephanie Wilson is a Partner and Co-Director of Government Contracts at Berenzweig Leonard. She can be reached at swilson@berenzweiglaw.com.