On Friday, Sept. 24, 2021, the Safer Federal Workforce Task Force published its new guidance pursuant to the president’s recent executive order directing that all federal contractors’ employees be vaccinated. The detailed 14-page guidance has a number of important clarifications of who must be vaccinated, by when and what other steps a federal contractor must take.
Here are 12 high-level takeaways.
- Does the requirement apply to existing federal contracts?
Technically, no. The requirement applies to “covered contractors” who are working on “covered contracts.” Covered contracts contain a clause that mandates compliance with the task force’s guidance. However, federal agencies are “strongly encouraged to incorporate a clause requiring compliance … into existing contracts and contract-like instruments prior to the date upon which the order requires inclusion of the clause.” Thus, contractors should expect that if there are opportunities to reopen or modify agreements, the contracting agency will seek to include a clause implementing the vaccine mandate. Indeed, for contracts awarded before Oct. 15 for which performance is ongoing, “the requirement must be incorporated at the point at which an option is exercised or an extension made.”
- When will agencies start including the clause requiring compliance with the task force guidance?
The requirements must be incorporated in contracts awarded on or after Nov. 14, 2021. However, between Oct. 15 and Nov. 14, 2021, “agencies must include the clause in the solicitation and are encouraged to include the clause in contracts awarded during this time period but are not required to do so unless the solicitation for such contract was issued on or after October 15.” In other words, practically speaking, it is likely that all contracts solicited after the issuance of the task force guidance will have the clause included, making it important to read the contract terms carefully.
- By when do covered contractors need to ensure that their employees are “fully” vaccinated?
Covered contractor employees must be fully, not partly, vaccinated by Dec. 8, 2021. For contracts becoming effective 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 performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.”
Keep in mind that for an employee to be fully vaccinated for purposes of the guidance means that two weeks have passed since the individual received the second dose of a two-dose vaccine or two weeks after he or she received a single-dose vaccine. Thus, the true date employers should target for having their employees to have received all of their doses of the vaccine is the day before Thanksgiving, Wednesday, Nov. 24, 2021. As the two-dose vaccine has a gap of 21 to 28 days between shots, depending on the vaccine, employees undergoing the two-dose regimen will need to have started the process by late October or very early November.
- Does a covered contractor have to have actual proof of vaccination, or will an employee certification be good enough?
Proof of vaccination is required; an “attestation of vaccination by the covered contractor employee is not an acceptable substitute for documentation of proof of vaccination.”
- Does a covered contractor have to pass these requirements through to its subcontractors?
Yes. The requirements must be passed through to subcontractors except for those who are only providing products to the contractor.
- Do employees who are not working at a federal facility or who are not actually working on the federal contract have to be vaccinated?
Yes. One of the more far-reaching requirements of the guidance requires that all employees at all facilities who will come into contact with a covered contract employee during the period of the covered contract, including in any “common areas such as lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages,” must be vaccinated. In short, the guidance applies to “all covered contractor employees and to all contractor or subcontractor workplace locations.”
There is a narrow exception that exempts individuals working at home from the guidance’s masking and physical distancing requirements, as the home is not a “covered contractor workplace.” However, 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.”
- Do small federal contractors, i.e., those that have fewer than 100 employees, have to comply?
Yes. The task force guidance applies regardless of the size of the contractor.
- Are there any exceptions to the vaccine requirement?
There are a few. First, employees for whom legal accommodations (either medical or religious) are “required” might be exempt from being vaccinated, although other requirements (such as proper and consistent masking and social distancing) will apply to those individuals. As the interactive process for determining whether an accommodation is available may take some time, the time to start in on the accommodation process is soon.
In addition, contracts “solely” for the provision of “products” (including subcontracts to provide the higher-tier contractors with products) are not covered.
- Are there other requirements in the guidance?
Yes. The guidance includes masking and social distancing requirements, including for vaccinated individuals and outdoors. For example, in areas of “high or substantial community transmission,” as determined by the Centers for Disease Control and Prevention, even “fully vaccinated people must wear a mask in indoor settings. Individuals who are not fully vaccinated “must wear a mask indoors and in certain outdoor settings” no matter what the rate of transmission is in the geographic region. Moreover, individuals who are not fully vaccinated “should maintain a distance of at least six feet from others at all times.”
- Are face shields, single-layer masks, or masks with exhalation valves, vents or other openings acceptable?
- Will state prohibitions against vaccine requirements, proof of vaccination or mask usage requirements trump the federal guidance?
No. According to the guidance, these “requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance.” State and municipal governments, however, can establish “more protective workplace safety protocols than those established under this Guidance.” The guidance does not, however, apply outside the United States and its “outlying areas.”
- Does a covered contractor have to designate a person or persons to coordinate these safety efforts?
Yes. Covered contractors are required to designate a person or persons to coordinate the implementation of and compliance with the guidance and to confirm that “information on required COVID-19 workplace safety protocols is provided to covered contractor employees and all other individuals likely to be present at covered contractor workplaces, including by communicating the required workplace safety protocols and related policies by email, websites, memoranda, flyers, or other means and posting signage at covered contractor workplaces that sets forth the requirements and workplace safety protocols in this Guidance in a readily understandable manner.”
Whether the task force appreciated any irony in the last three words in the preceding sentence when issuing its 14-page guidance was unclear.