Understanding the Latest COVID-19 Vaccine Guidance for Federal Contractors

President Joe Biden issued Executive Order 14042 on Ensuring Adequate COVID Safety Protocols for Federal Contractors (EO 14042), which mandated COVID-19 vaccines for certain federal contractor employees...

On September 9, 2021, President Joe Biden issued Executive Order 14042 on Ensuring Adequate COVID Safety Protocols for Federal Contractors (EO 14042), which mandated COVID-19 vaccines for certain federal contractor employees. To help assist with compliance with the new COVID-19 safety requirements, the Safer Federal Workforce Task Force (Task Force) recently issued Guidance for Federal Contractors and Subcontractors (Guidance).

Executive Order 14042

Executive Order 14042 mandates that federal contractors and subcontractors include COVID-19 clauses in contracts entered into after October 15, 2021. The clauses must specify that the contractor or subcontractor will, for the duration of the contract, comply with all COVID-19 protocols established by the Safer Federal Workforce Task Force and implemented through regulations issued by the Federal Acquisition Regulation Council (FARC). Notably, the clause applies to any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.

Under Executive Order 14042, the requirement will apply to any new contract; new contract-like instrument; new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument, if: (i)  it is a procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property; (ii)  it is a contract or contract-like instrument for services covered by the Service Contract Act (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 (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.

Conversely, the new requirement will not apply to (i)  grants; (ii)  contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93-638), as amended; (iii)  contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold, as that term is defined in section 2.101 of the Federal Acquisition Regulation [generally $250,000]; (iv)  employees who perform work outside the United States or its outlying areas, as those terms are defined in section 2.101 of the Federal Acquisition Regulation; or (v)  subcontracts solely for the provision of products.” 

Under EO 14042, agencies are required to include an implementing clause in solicitations and contracts for services, including construction, in accordance with the following dates:

• New contracts awarded on or after November 14 from solicitations issued before October 15 (this includes new orders awarded on or after November 14 from solicitations issued before October 15 under existing indefinite-delivery contracts);
• New solicitations issued on or after October 15 and contracts awarded pursuant to those solicitations (this includes new solicitations issued on or after October 15 for orders awarded pursuant to those solicitations under existing indefinite-delivery contracts);
• Extensions or renewals of existing contracts and orders awarded on or after October 15, 2021; and
• Options on existing contracts and orders exercised on or after October 15, 2021.

Guidance for Federal Contractors and Subcontractors

On September 24, 2021, the Task Force issues guidelines as required under EO 14042. The Guidance requires employees of federal contractors and subcontractors to be vaccinated unless they are legally entitled to an accommodation. It also mandates that employees and visitors of federal contractors and subcontractors follow the masking and physical distancing requirements established by the Centers for Disease Control and Prevention (CDC). Covered contractors must also designate a person or persons to coordinate implementation of and compliance with the Task Force guidance and the required workplace safety protocols at covered contractor workplaces.

As set forth in the Guidance, “covered contractors” are those contractors and subcontractors that enter into contracts or contract-like instruments containing a clause incorporating the Guidance. The requirements of the Guidance apply broadly to any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace, which is defined as “a location controlled by a covered contractor at which any employee of a 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.” Accordingly, the COVID-19 requirements may apply to employees of covered contractors who are not themselves working on or in connection with a covered contract.

Below is a brief summary of several key requirements established under the Guidance.

COVID-19 Vaccine Mandate

Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. 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.

The Guidance provides that a covered contractor may be required to provide an accommodation to covered contractor employees who communicate to the covered contractor that they are not vaccinated against COVID-19 because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance. Additionally, should a Federal agency have an “urgent, mission-critical need” for a covered contractor to have their 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.  Under this limited exception, 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.

Masking and Social Distancing

Under the Guidance, covered contractors must ensure that all individuals, including covered contractor employees and visitors, comply with published CDC guidance for masking and physical distancing at a covered contractor workplace.

In areas of high or substantial community transmission, fully vaccinated people must wear a mask in indoor settings. In areas of low or moderate community transmission, fully vaccinated people do not need to wear a mask. Fully vaccinated individuals do not need to physically distance regardless of the level of transmission in the area. Individuals who are not fully vaccinated must wear a mask 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 workspaces.

The Guidance provides that a covered contractor may be required to provide an accommodation to covered contractor employees who communicate to the covered contractor that they cannot wear a mask because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance. Additionally, covered contractors may provide for exceptions to mask wearing and/or physical distancing requirements consistent with CDC guidelines, such as when an individual is alone in an office with floor-to-ceiling walls and a closed door. Covered contractors may also provide exceptions 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.

Coordinating COVID-19 Workplace Safety Efforts

The Guidance requires covered contractors to designate a person or persons to coordinate implementation of and compliance with its workplace safety protocols at covered contractor workplaces. The 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.

Next Steps for Federal Contractors

Federal contractors should review the new Guidance to determine whether their employees will be impacted by the new COVID-19 safety requirements. For federal contractors that are covered, it is advisable to consult with experienced counsel and begin preparing for implementation as soon as possible.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Teddy Eynon, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.