On September 24, following President Biden’s September 9 Executive Order, Ensuring Adequate COVID Safety Protocols for Federal Contractors, the Safer Federal Workforce Task Force (Task Force) issued new guidance on COVID-19 safety protocols applicable to federal contractors and subcontractors. It is notable that the guidance does not apply to grants.
Before the guidance was released, the Director of the Office of Management and Budget determined, as required by the Federal Property and Administrative Services Act that compliance with those measures laid out in the guidance will promote economy and efficiency in federal contracting. This determination was met because decreasing the spread of COVID-19 “will decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal Government.” There is no indication that the director considered the impacts of attrition or costs on businesses to administer these requirements.
Breakdown of Requirements under New Executive Order
These requirements, in addition to any requirements applicable in a federal workplace, apply to contractors and subcontractors with a “covered contract.” The obligations that the guidelines require to be part of a soon-to-be draft contract clause include:
- By December 8, 2021, “covered contractor employees,” regardless of prior COVID-19 infection and associated immunity must be “fully vaccinated” for COVID-19. This means that at least two weeks have passed after they have received the last required dose of an approved vaccine, except in limited circumstances where an employee is legally entitled to an accommodation.
Many contractors have questions regarding when an employee may be legally entitled to an accommodation. The guidance provides that this may be the case “because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance.” It continues, “[r]equests for ‘medical accommodation’ or ‘medical exceptions’ should be treated as required for a disability accommodation.”
After December, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded contract and by the first day of the performance period on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract. This also applies to contractor employees working from home on a covered contract.
- Compliance by covered contractor employees and visitors with published CDC guidance for masking and physical distancing is required while in a “covered contractor workplace.” This does not apply to covered contractor employees working from home. It does, however, require that in areas of “high or substantial community transmission,” even fully vaccinated individuals wear a mask in indoor settings. To determine the level of community spread, covered contractors must check the CDC COVID-19 Data Tracker County View website.
- Designation by covered contractors of a COVID-19 workplace safety coordinator at covered contractors’ workplaces whose primary duties appear to be communicating the required safety protocols to all covered employees and visitors and confirming compliance by reviewing the required vaccine documentation. COVID-19 workplace safety protocols may comprise some or all of this person’s regular duties.
Where an agency has an “urgent, mission critical need” for a contractor’s employees to begin work before being vaccinated, an agency head may approve an exception. However, the employees must be fully vaccinated within 60 days of beginning work on a covered contract or at a covered workplace.
Covered contractors are required to review covered employees’ documentation to prove vaccination status. Acceptable forms for proof include showing or providing one of the following documents:
- A copy of the record of immunization from a healthcare 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.
- A copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of healthcare professional or clinic site administering vaccine.
- A digital copy of such records, including, for example, a digital photograph, scanned image, or PDF of such a record.
Neither attestation nor a recent antibody test provided by a covered contractor employee are acceptable substitutes for proof of vaccination.
Although not required, covered contractors are “strongly encouraged” to mandate vaccination requirements in non-covered contracts and agreements with non-covered contractors whose employees may perform work at covered contractors’ workplaces but do not work in connection with a federal contract. Such agreements include contracts for food services, onsite security, and groundskeeping at covered contractor workplaces.
Definition: Covered Contractor
The definitions here are key. A “covered contractor” is a contractor with at least one agreement that includes the COVID-19 workplace safety provision. Those agreements will consist of, at a minimum:
- Contracts awarded prior to October 15 where performance is ongoing – the requirements must be incorporated at the point at which an option is exercised, or an extension is made.
- New contracts – the requirements must be incorporated into contracts awarded on or after November 14. Between October 15 and November 14, agencies must include the clause in the solicitation and are encouraged to include the clause in contracts awarded during this period but are not required to do so unless the solicitation for such contract was issued on or after October 15.
These requirements must be flowed down to subcontractors at all tiers, except for subcontracts solely for the provision of products. Still, it does not appear that a prime contractor will be required to independently verify that a subcontractor’s employees comply with these requirements. The only other current exceptions seem to be contracts below the Simplified Acquisition Threshold ($250,000 in most instances) and employees who only perform work outside the United States or its outlying territories. But, in contrast with the Executive Order, the guidance suggests that these obligations will not be mandatory for subcontracts or contracts solely for the manufacturing of products (the Executive Order only exempts subcontracts). Notably, these requirements will apply to small businesses and commercial-item contracts.
Definition: Contract or Contract-like Instrument
A “contract or contract-like instrument” is incredibly broad, and 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.”
Definition: Covered Contractor Employee
A “covered contractor employee” means any full-time or part-time employee of a covered contractor working “in connection with” a covered contract or working at a “covered contractor workplace.” This is defined to include employees of covered contractors who are not working on in connection with a covered contract but does not include contractor employees who perform work entirely outside the United States or its outlying areas (that exception may ultimately be irrelevant as some countries are requiring proof of vaccination before entry).
Definition: In Connection With
“In connection with” a covered contract means performing “duties necessary to the performance of the covered contract” and includes those “who are not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review ….”
Definition: Covered Contractor Workplace
A “covered contractor workplace” is a location controlled by a covered contractor at which an 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. It does not include an employee’s residence, but it does include outdoor workplace locations. Also, a workplace is covered even if a covered contractor employee is present only on one floor or a separate area or building of a facility unless the contractor affirmatively determines that none of its other employees will come into contact at any time with the covered contractor employee.
The Implementing Contract Provision is Yet to Be Issued
Despite language contrary in the September 9 Executive Order, it does not appear that these guidelines are immediately applicable. The guidance states that covered contractors “shall adhere” to its requirements, but to date, there is no such contractual obligation, and this guidance is not a regulation. The guidance also requires that contractors and subcontractors comply with any new guidance issued by the Task Force.
Rather, now that the guidelines are issued, by October 8, 2021, the Federal Acquisition Regulatory Council is required to issue guidance for agencies to, starting on October 15, add a new COVID-19 workplace safety Federal Acquisition Regulation (FAR) provision to covered solicitations and contracts. In addition, beginning October 15, covered contracts and “contract like instruments not subject to the FAR” are also required to include the clause.
Government Contractors Should Prepare Now
While specific contracts and subcontracts fall outside the definition of “covered contracts,” agencies are “strongly encouraged” to incorporate a clause requiring compliance with the guidance in those agreements to the extent “consistent with applicable law.” This means that agencies will almost certainly try to modify existing contracts and contract-like instruments to include the new clause and will likely try to include it in contracts below the Simplified Acquisition Threshold and those solely for the manufacturing of products.
Although the FAR clause is not yet issued and may not be incorporated into your company’s contracts until well after the implementation date, we recommend that all government contractors prepare now. It is likely that the government will require certification of compliance with the vaccine mandate prior to performance of new contracts or the exercise of options for existing contracts, and after December 8 that will mean all of your employees will be required to be vaccinated or be exempt subject to a valid accommodation or sincerely held religious belief, practice, or observance.
And even for contractors who start implementing these requirements now, the timeline is tight. Contractor employees must be fully vaccinated by December 8, which means at least two weeks must have passed since their last dose. For single dose vaccines, employees must have their injection no later than November 24. For two dose vaccines such as Pfizer and Moderna, employees must have received the first dose much earlier. For Moderna, the two doses have to be separated by 28 days, meaning the first dose would have be administered no later than October 27. For Pfizer, the doses must be separated by 21 days, meaning the first dose must be administered no later than November 3.
This issue continues to evolve rapidly, and our Government Contracts Practice will continue to update our readers on the latest developments. Should you have any questions about these COVID-19 vaccination requirements, please contact Richard Arnholt at firstname.lastname@example.org or 202-827-2971 or Mary Leigh Pirtle at email@example.com or 615-742-7773.