Safer Federal Workforce Task Force Issues COVID-19 Guidance for Federal Contractors and Subcontractors Mandating COVID-19 Vaccine

On September 24, 2021, the Safer Federal Workforce Task Force (“Task Force”) issued its promised “Guidance” mandating vaccines, amongst other requirements, for certain federal contractors and subcontractors. This Guidance comes on the heels of Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” In that Executive Order, summarized here, President Biden directed executive departments and agencies to ensure that covered contracts and contract-like instruments include a new clause in their contracts after October 15, 2021. It is this clause which imposes the requirements articulated in the Task Force’s Guidance on federal contractors and subcontractors.

Basic Requirements

The Task Force Guidance sets forth many obligations, the most obvious being the vaccine mandate. However, covered contractors will be required to comply with a host of obligations outlined below.

I. Mandatory Vaccination Requirement

A.     Who Must Be Vaccinated?

The Guidance requires all covered contractor employees to be fully vaccinated after December 8, 2021, except in limited circumstances where the employee is legally entitled to an accommodation (such as on the basis of a disability or sincerely held religious belief, practice, or observance). This mandate covers any “covered contractor employee,” defined as a full-time or part-time employee working “on or in connection with a covered contract” or working at a “covered contractor workplace.” A “covered contractor workplace” is a location controlled by a covered contractor at which any employee of the covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract.

This means that a contractor employee who does not work on or in connection with a covered contract, but works on the same floor or area of the building as a covered contractor employee must also be vaccinated. The only exception is if the covered contractor can affirmatively determine that none of its employees on another floor, or in separate areas of the building, will come into contact with a covered contractor employee during the period of performance of a covered contract. This includes affirmatively determining that there will be no interactions between covered contractor employees and non-covered contractor employees in those locations during the period of performance on the contract, including interactions through the use of common areas such as lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages. If the employer cannot make such a determination, the mandate extends to others who are likely to encounter the covered contractor employee.

In other words, even if other employees do not work with covered contractor employees, if everyone must enter the facility through the same security area, or park in the same garage, or use the same elevators, etc., then all employees of the contractor in those areas must be vaccinated. Such an extension may prompt contractors who do not wish to apply the mandate to other employees, to segregate its covered contractor employees from others.

To further complicate matters, employees who work “on or in connection with” a covered contract include not only those who perform the specific work called for by the covered contract, but also those who are necessary to the performance of the covered contract, such as human resources, billing, and legal review. Consequently, even if all covered contractor employees who work “directly” on the covered contract work at one of the contractor’s locations but the contractor’s administrative functions, such as HR, are at another location, then all employees at that second location who are likely to physically interact in the same common areas with the HR employee(s) would also need to be vaccinated.

A covered contractor workplace does not include a covered contractor employee’s residence. Therefore, an employee who does not work on or in connection with a covered contract need not be vaccinated if they work exclusively from their residence. However, an individual working on a covered contract from their residence is a covered contractor employee, and must comply with the vaccination requirement.

Additionally, the Guidance also applies to contractor or subcontractor workplace locations that are outdoors.

B.     Proof of Vaccination

The contractor must review, and may accept one of the following documents to prove the covered contract employee’s vaccination status:

• a copy of the record of immunization from a health care provider or pharmacy,
• a copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020),
• a copy of medical records documenting the vaccination,
• a copy of immunization records from a public health or State immunization information system, or
• 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.

Digital copies of these records, such as a digital photograph, scanned image, or pdf are sufficient.

An attestation of vaccination by the covered contractor employee is not an acceptable substitute for documentation of proof of vaccination.

Finally, the Guidance also makes clear that individuals who have had a prior COVID-19 infection, or who have a recent antibody test, must still prove they are fully vaccinated.

II. Safety Protocols

In addition to the vaccination mandate, which will get most of the attention, the Guidance also imposes requirements related to masking and physical distancing while in covered contractor workplaces. Specifically, covered contractors must ensure that all individuals, including covered contractor employees and visitors, comply with relevant CDC guidance related to masking and physical distancing at a covered contractor workplace (subject to exceptions for medical or religious accommodations). There may also be additional obligations for specific settings, such as in healthcare, transportation, and schools.

A.     Applicability

These protocols apply to all covered contractor employees and all workplace locations, regardless of whether the work is performed at a “covered contractor workplace” or at a Federal workplace. For instance, an individual working on a covered contract from their residence is a covered contractor employee, and must comply with the vaccination requirement for covered contractor employees, even if the employee never works at either a covered contractor workplace or Federal workplace during the performance of the contract. However, a covered contractor employee’s residence is not a covered contractor workplace, so while in the residence the individual need not comply with requirements for covered contractor workplaces, including those related to masking and physical distancing, even while working on a covered contract.

B.     Weekly Monitoring of Community Transmission Data

At least weekly, covered contractors must check the CDC’s COVID-19 Data Tracker County View website for community transmission information in all areas where they have a covered contractor workplace to determine proper workplace safety protocols.

When the level of community transmission in the area of a covered contractor workplace increases from low or moderate to substantial or high, contractors and subcontractors should put in place more protective workplace safety protocols consistent with published guidelines. However, when the level of community transmission in the area of a covered contractor workplace is reduced from high or substantial to moderate or low, the level of community transmission must remain at that lower level for at least two consecutive weeks before the covered contractor may loosen safety protocols in line with recommendations for the lower level of community transmission.

C.     Mask/Physical Distancing Requirements

In areas of high or substantial community transmission, fully vaccinated individuals must wear a mask, with limited exceptions. Masks are not required in areas of low or moderate community transmission. Physical distancing is not required for any fully vaccinated individual.

Unvaccinated individuals must wear masks indoors and in certain outdoor settings, regardless of the level of community transmission in the area. To the extent practicable, individuals who are not fully vaccinated should maintain a distance of at least six feet from others at all times, including in offices, conference rooms, and all other communal and work spaces.

Exceptions to wearing masks and/or physical distancing may be provided when an individual is alone in an office with floor to ceiling walls and a closed door, or for a limited time when eating or drinking and maintaining appropriate distancing. Exceptions may also be provided for covered contractor employees engaging in activities in which a mask may get wet; high intensity activities where covered contractor employees are unable to wear a mask because of difficulty breathing; or activities for which wearing a mask would create a risk to workplace health, safety, or job duty as determined by a workplace risk assessment. Such exceptions must be approved in writing by an authorized contractor representative.

D.     Visitors

With regard to visitors, covered contractors should post signage at entrances to covered contractor workplaces outlining information on safety protocols for fully vaccinated and not fully vaccinated individuals. This includes protocols for masking and physical distancing, and instructing individuals to follow the appropriate workplace safety protocols while at the covered contractor workplace. Covered contractors may take other reasonable steps, such as communicating workplace safety protocols to visitors prior to their arrival at a covered contractor workplace or requiring all visitors to follow masking and physical distancing protocols for not fully vaccinated individuals.

III.        Designation of Responsibility

The Guidance requires covered contractors to designate a person or persons to coordinate implementation of and compliance with the Guidance and the workplace safety protocols outlined above. This designated person or persons may be the same individual(s) responsible for implementing any additional COVID-19 workplace safety protocols required by local, State, or Federal law, and their responsibilities to coordinate COVID-19 workplace safety protocols may comprise some or all of their regular duties.

The designated individual (or individuals) must ensure that information on required COVID-19 safety protocols or provision of proper vaccine documentation, is provided to covered contractor employees and all other individuals likely to be present at covered contractor workplaces by email, websites, memoranda, flyers, or other means, and posting signage at covered contractor workplaces. Such information must be presented in a readily understandable manner.

Who Is a Federal Contractor or Subcontractor?

A lynch pin question in this analysis is determining which federal contractors or subcontractors must comply with these obligations. Unfortunately, the term “federal contractor” has different meanings when used in different Executive Orders (which can make things particularly confusing), and those definitions also often differ from who qualifies as a “federal contractor” for affirmative action purposes.

Here, the Executive Order primarily affects new contracts or contract-like instruments, as defined in the Department of Labor’s proposed rule, “Increasing the Minimum Wage for Federal Contractors” (which could change). The Executive Order also applies to the solicitation of new contracts and the extension, renewal, or exercise of options on existing contracts or contract-like instruments. A “contract or contract-like instrument” is defined as:

an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. This definition includes, but is not limited to, a mutually binding legal relationship obligating one party to furnish services (including construction) and another party to pay for them. The term contract includes all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing. The term contract shall be interpreted broadly as to include, but not be limited to, any contract within the definition provided in the Federal Acquisition Regulation (FAR) at 48 CFR chapter 1 or applicable Federal statutes. This definition includes, but is not limited to, any contract that may be covered under any Federal procurement statute. Contracts may be the result of competitive bidding or awarded to a single source under applicable authority to do so. In addition to bilateral instruments, contracts include, but are not limited to, awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; exercised contract options; and bilateral contract modifications. The term contract includes contracts covered by the Service Contract Act, contracts covered by the Davis-Bacon Act, concessions contracts not otherwise subject to the Service Contract Act, and contracts in connection with Federal property or land and related to offering services for Federal employees, their dependents, or the general public.

Obviously, this is extremely broad, but it’s important to note that even if there is a contract or contract-like instrument, that contract/instrument is only covered by the Executive Order/Task Force Guidance if:

(i) it is a procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property;
In the proposed “Increasing the Minimum Wage for Federal Contractors,” (which we will presume will be the definition used for this Executive Order) a “procurement contract for services” is defined as a procurement contract the principal purpose of which is to furnish services in the United States through the use of service employees, and any subcontract of any tier thereunder. The term procurement contract for services includes any contract subject to the provisions of the Service Contract Act, as amended, and the implementing regulations.
A “procurement contract for construction” means a procurement contract for the construction, alteration, or repair (including painting and decorating) of public buildings or public works and which requires or involves the employment of mechanics or laborers, and any subcontract of any tier thereunder. The term procurement contract for construction includes any contract subject to the provisions of the Davis-Bacon Act, as amended, and the implementing regulations.
A “leasehold interest in real property” is not specifically defined.

(ii) it is a contract or contract-like instrument for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
The Service Contract Act applies to every contract entered into by the United States or the District of Columbia, the principal purpose of which is to furnish services in the United States through the use of service employees.

(iii) it is a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); or
A “concessions contract” is a contract under which the Federal Government grants a right to use Federal property, including land or facilities, for furnishing services. The term “concessions contract” includes but is not limited to contracts with the principal purpose of furnishing food, lodging, automobile fuel, souvenirs, newspaper stands, and/or recreational equipment, regardless of whether the services are of direct benefit to the Government, its personnel, or the general public. Examples of concessions contracts that are generally covered include contracts with the Federal Government to operate souvenir shops in national parks or fast food restaurants in Federal buildings.

(iv) it is a contract or contract-like instrument 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;
This category refers to leases of Federal property, including space and facilities, and licenses to use such property entered into by the Federal Government for the purpose of offering services to the Federal Government, its personnel, or the general public. Examples of such agreements include delegated leases of space in a Federal building from an agency to a contractor whereby the contractor operates a child care center, credit union, gift shop, barber shop, or fitness center in the Federal agency building to serve Federal employees and/or the general public.

Importantly, the Executive Order specifically excludes contracts for products only, grants, or contracts whose value is less than or equal to $250,000. Therefore, if the federal contract—regardless of whether it meets the criteria above—is of relatively low monetary value, the contractor would not have to comply with the obligations. On the other hand, the requirement to comply with this Guidance applies equally to covered contractors of all sizes, regardless of whether they are a small business. There is no employee threshold which must be met for these obligations.

These requirements will also apply to any subcontracts at all tiers. This means the prime contractor must “flow the clause down” to first-tier subcontractors; 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.

We note that determining whether your business has a covered contract is not easy. Contractors should therefore pay close attention to whether the contract clause is included in any new, extended, or renewed contracts. Indeed, the Guidance defines “covered contract” as “any contract or contract-like instrument that includes the clause described in Section 2(a) of the [Executive Order]” (emphasis added). While we do not have the clause language yet, once released it can serve as a helpful signal of forthcoming obligations.

Timing of Compliance

 Even if a contract meets one of the criteria above, the Executive Order’s requirements only attach once the contract clause is inserted into the relevant contract, which at the earliest, would be on or after October 15, 2021, for contracts where performance is ongoing. For new contracts, the requirement would be incorporated into contracts awarded on or after November 14.

With regard to the vaccine mandate, covered contractor employees must be fully vaccinated no later than December 8, 2021. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.

 Miscellaneous

The Task Force reserves the right to update the Guidance in the future pursuant to CDC guidance, and as warranted as the pandemic and/or public health conditions change. If the Task Force adds new requirements, those requirements will apply immediately to existing contracts that already include the relevant contract clause, and to any new contracts with the clause after that.

We will continue to monitor the Task Force’s website for updates, FAQ responses, and other developments.