On Friday, September 24, 2021, the Safer Federal Workforce Task Force issued new guidance regarding COVID-19 vaccinations, masking, and physical distancing for employees of federal contractors and subcontractors. President Biden’s September 9, 2021 Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, directed the issuance of this guidance.
Covered contracts are contracts and contract-like instruments with the federal government for services (including contracts subject to the Service Contract Act and concession contracts exempted from the Service Contract Act), construction (including contracts covered by the Davis Bacon Act), leasehold interest in real property, and contracts in connection with federal property or land and related to offering services for federal employees, their dependents, or the general public. In addition to Executive Order 14042’s exclusion of subcontracts for products, the guidance appears to also exempt contracts solely for products, but this is not clearly
What COVID-19 Safety Protocols Does the New Guidance Require?
Vaccine Mandate: By December 8, 2021, all employees of federal contractors must be fully vaccinated (meaning two weeks after the final dose in a series, or two weeks after a single-dose vaccine), except in limited circumstances where an employee is legally entitled to an accommodation, such as for legitimate medical reasons or sincerely held religious beliefs.
Employers are required to verify their employees’ vaccination status by reviewing the employees’ vaccination documentation. The guidance lists specific forms of acceptable
documentation and provides that reviewing a digital copy, such as a photo or scan, is acceptable.
If there is an "urgent, mission-critical need" for an unvaccinated contractor employee to start on a contract or at a covered workplace (defined below), the employee may be approved for an exception, with the understanding that the employee must become fully vaccinated within 60 days of beginning the "mission-critical" work.
Masking and Social Distancing Requirements: Contractors must ensure all individuals, including employees and visitors, comply with CDC guidance for masking and physical distancing at covered workplaces. A "covered workplace" means a location controlled by a
covered contractor at which any employee working on or in connection with a covered contract is likely to be. (It does not include employees’ homes, so there is no masking/social distancing required there.)
While there are exceptions and nuances to these masking and distancing guidelines, the general rule is that unvaccinated individuals must wear a mask indoors and certain outdoor settings, and they must keep a distance of at least six feet from others at all times. The general rule for fully vaccinated individuals is that there is no need to physically distance, and whether indoor masking is required depends upon the community transmission rate. Notably, the CDC guidance provides that even vaccinated individuals should wear a mask indoors in public if they are in an area of substantial or high transmission.
Designation of COVID-19 Safety Coordinator at Covered Contractor Workplaces: Contractors must designate an individual or team to coordinate implementation of and compliance with the new guidance at covered contractor workplaces. The COVID-19 Safety Coordinator’s responsibilities include: (1) communicating safety protocols with employees and visitors, (2) posting signage communicating those protocols, and (3) verifying vaccination documentation of employees.
To Which Federal Contractors Does the Guidance Apply?
The Guidance applies to businesses that enter into, extend, or renew contracts or contract-like instruments on or after October 15, 2021 to provide services to the government. The Executive Order specifies that contracts are covered by the guidance if:
- The contract is a procurement contract for services, construction, or a leasehold interest in real property;
- The contract is for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
- The contract is for concessions, including any concessions contract excluded by Department of Labor regulations at 29 CFR 4.133(b); or
- The contract is 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.
The guidance does not apply to grants, contracts with Indian Tribes, or businesses with contracts valued below the "simplified acquisition threshold," which is generally set at $250,000. It also does not appear to apply to subcontractors that provide only products.
Note that the guidance does not contain a "small business exception," so it applies regardless of the number of employees a contractor has.
To Which Employees Does the Vaccine Mandate Apply?
With limited exceptions for medical/religious reasons, the guidance applies to all of the contractor’s employees, regardless of part-time or full-time status, regardless of where they are located (so long as they are located within the United States), and regardless of whether the employee him or herself is working on a covered government contract. Accordingly, the vaccination mandate will even apply to employees who work exclusively from their own homes.
What Is the Obligation to "Flow Down" the Clause?
The Executive Order that required the Task Force to issue this new guidance required executive departments and agencies to include in covered contracts a clause (the "clause") that states the contractor and any subcontractors will comply with the guidance. To ensure that subcontractors are in compliance, there’s a "flow down" obligation.
All of the above safety protocols must be "flowed down" to all lower-tier subcontractors, except for subcontracts solely for the provision of products. The prime contractor must flow the clause down to first-tier subcontractors, and
higher-tier subcontractors must flow the clause down to the next lower-tier subcontractor, to the point at which subcontract requirements are solely for the provision of products.
Do the Guidelines Apply in States That Seek to Prohibit Masking or Vaccination Mandates?
Yes. The guidance specifies that it supersedes any contrary state or local law or ordinance. On the flip side, the guidance also provides that if state law is more protective of workplace safety, employers are not excused from following a state’s more stringent protocols.
What Are the Penalties for Noncompliance?
The Guidance does not specify whether there are consequences for noncompliance. Penalties for noncompliance with other laws can include contract suspension or debarment, so federal contractors would be wise to assume similar repercussions are possible for noncompliance with this guidance.
With the deadlines quickly approaching, those federal contractors covered by this newly issued guidance are welcome to contact any member of Calfee's Labor and Employment Group for assistance with compliance.