Safer Federal Workforce Task Force Releases New Federal Contractor FAQs
On October 21, 2021, the Safer Federal Workforce Task Force (“Task Force”) updated its FAQ site to provide additional insight into the Federal Contractor vaccine mandate and corresponding safety protocols related to Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. While these FAQs do not shed light on which contractors are potentially covered by the mandate (which remains a big question for many employers), they are nevertheless helpful in clarifying other logistical questions, particularly related to exemptions/accommodations. A few notable examples include:
Q: If a covered contractor employee requests an accommodation, and that accommodation is denied by the covered contractor, how long should the contractor employee be afforded to be fully vaccinated?
The Task Force provides covered contractors with the autonomy to “establish a timeline” for a covered contractor employee whose request for an accommodation is denied to “promptly” become fully vaccinated. In other words, a contractor may provide an employee with additional time to get the vaccine if the reason for the delay was because the employee requested an accommodation, which was subsequently denied.
While this discretion is helpful for contractors in this situation, contractors should ensure that its timeline is reasonable, “prompt,” specific to the employee, and not a ruse to delay compliance with the mandate. Indeed, contractors who have the benefit of a longer period for compliance may consider setting deadlines for accommodation requests so that employees denied an exemption may still have sufficient time to comply with the vaccine deadline.
Q: Can a covered contractor grant a covered contractor employee an extension to the deadline for vaccination due to a documented medical necessity even if the contractor employee does not meet the legal definition of “disability” to be entitled to an accommodation?
The Task Force asserts that a contractor may have to grant a covered contractor employee an exemption in limited circumstances based on other medical considerations that do not arise to the level of a “disability.” For example, the CDC recommends delaying COVID-19 vaccination for at least 90 days after receiving monoclonal antibodies or convalescent plasma for COVID-19 treatment. If a covered contractor employee requests a delay in vaccination because of recent COVID-19 treatment of this nature, the Task Force states that the contractor “can” grant the extension. The Task Force makes clear, however, that these situations should be considered on a case-by-case basis, and should include assessing the individual’s particular medical evaluations and documentation.
Q: What medical conditions does the CDC consider a contraindication to vaccination with COVID-19 vaccines?
The CDC considers a history of the following medical conditions to be contraindications to vaccination with COVID-19 vaccines:
- Severe allergic reaction (e.g., anaphylaxis) after a previous dose or to a component of the COVID-19 vaccine; and
- Immediate allergic reaction of any severity to a previous dose or known (diagnosed) allergy to a component of the COVID-19 vaccine.
The Task Force notes that if an individual is allergic to a component of one or more COVID-19 vaccines, that individual may not be allergic to components in all COVID-19 vaccines.
Q: Are there circumstances that the CDC recommends delaying vaccination for COVID-19?
Yes. The Task Force provides a non-exhaustive list of some possible circumstances here. This list includes when an individual currently has COVID-19, has received monoclonal antibodies or convalescent plasma for COVID-19 treatment, is undergoing immunosuppressive therapies, or has a history of myocarditis or pericarditis.
In circumstances in which delay pursuant to these clinical considerations means that a covered contractor employee is not fully vaccinated as of December 8, 2021 or at the time that covered contractor employees begin work on a covered contract or at a covered workplace, the covered contractor should require that individual to become fully vaccinated promptly after clinical considerations no longer recommend delay.
In such case, during the period in which vaccination is delayed, a covered contractor employee must follow applicable masking and physical distancing protocols for not fully vaccinated individuals. In other words, they may continue to work on the covered contract, so long as they follow other applicable safety measures.
However, there may be circumstances in which an agency determines that the nature of a covered contractor employee’s job responsibilities at a Federal workplace, or the location of their work at a Federal workplace, requires heightened safety protocols. For instance, an agency may determine that the nature of a covered contractor employee’s responsibilities at a Federal workplace are such that no safety protocol other than vaccination is adequate. If that is the case, employees who are not fully vaccinated would be unable to perform the requisite work at the Federal workplace.
Q: Is vaccination for COVID-19 recommended for people who are trying to get pregnant or might become pregnant in the future?
Yes. According to the Task Force, the CDC has stated that COVID-19 vaccination is recommended for people who are trying to get pregnant now or might become pregnant in the future, as well as their partners.
The Task Force similarly reiterates the CDC’s recommendation that individuals who are currently pregnant get the vaccine. However, a covered contractor may allow a covered contractor employee to delay vaccination based on the contractor employee’s particular medical circumstances, consistent with the covered contractor’s process for reviewing delay requests.
Q: Can a covered contractor employee delay a COVID-19 vaccine because they have recently received another vaccine, such as the seasonal influenza vaccine?
No. The COVID-19 vaccines may be administered without regard to timing of other vaccines. This includes simultaneous administration of COVID-19 vaccine and other vaccines on the same day.
Q: Can a covered contractor employee who participates in a clinical trial for a COVID-19 vaccine be considered fully vaccinated?
Clinical trial participants from a U.S. site who are documented to have received the full series of an “active” (not placebo) COVID-19 vaccine candidate, for which vaccine efficacy has been independently confirmed (e.g., by a data and safety monitoring board), can be considered fully vaccinated two (2) weeks after they have completed the vaccine series. Currently, the U.S.-based AstraZeneca and Novavax COVID-19 vaccines meet these criteria.
We will continue to monitor the Task Force’s website for further guidance on these matters. In the meantime, we urge you to monitor your own federal contracts and subcontracts for the following clause—the inclusion of which initiates the mandate requirements:
FAR Deviation Clause
Executive Order 14042
Ensuring Adequate COVID Safety Protocols for Federal Contractors
Baseline is FAC 2021-07, published in the Federal Register on August 11, 2021.
September 24, 2021
PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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Subpart 52.2—Text of Provisions and Clauses
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[52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors.
ENSURING ADEQUATE COVID-19 SAFETY PROTOCOLS FOR FEDERAL
CONTRACTORS (OCT 2021) (DEVIATION)
(a) Definition. As used in this clause –
United States or its outlying areas means—
(1) The fifty States;
(2) The District of Columbia;
(3) The commonwealths of Puerto Rico and the Northern Mariana Islands;
(4) The territories of American Samoa, Guam, and the United States Virgin Islands; and
(5) The minor outlying islands of Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Atoll.
(b) Authority. This clause implements Executive Order 14042, Ensuring Adequate COVID
Safety Protocols for Federal Contractors, dated September 9, 2021 (published in the Federal Register on September 14, 2021, 86 FR 50985).
(c) Compliance. The Contractor shall comply with all guidance, including guidance conveyed through Frequently Asked Questions, as amended during the performance of this contract, for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance) at https:/www.saferfederalworkforce.gov/contractors/
(d) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (d), in subcontracts at any tier that exceed the simplified acquisition threshold, as defined in Federal Acquisition Regulation 2.101 on the date of subcontract award, and are for services, including construction, performed in whole or in part within the United States or its outlying areas.
(End of clause)]