As part of his multi faceted national Path Out of the Pandemic COVID 19 Action Plan, President Biden issued Executive Order 14042, entitled “Ensuring Adequate COVID Safety Protocol for Federal Contractors (Order),” which directs executive departments and agencies to ensure that contracts and contract like instruments covered by the Order include a clause requiring the contractors as well as their subcontractors at any tier to comply with all guidance for all contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force) for the duration of the contract.
Pursuant to the Order, the Task Force, on September 24, 2021, issued a New Guidance on COVID 19 Workplace Safety for Federal Contractors and Subcontractors (Guidance). Below are 20 takeaways from the Guidance.
1. What types of contracts and contract like instruments does the Order apply to?
- a contract covered by the Service Contract Act (SCA);
- a procurement contract for services, construction or a leasehold in real property;
- a contract for concessions, including concessions excluded generally under the SCA; or
- a contract in connection with federal property or lands offering services for federal employees, dependents, or the general public.
Contracts which are not covered under the new Executive Order include the following:
- subcontracts solely for the provision of products;
- agreements involving employees performing work outside the U.S.;
- contracts or contract like instruments with Indian Tribes; and
- contracts or subcontracts with a value equal to or less than the FAR simplified acquisition threshold.
2. Who is a “covered contractor employee” subject to the Order and the vaccination requirements?
A covered contractor employee means any full time or part time employee of a contractor working on or in connection with a covered contractor or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with the covered contractor.
3. What are the overarching safety protocols that federal contractors and subcontractors must comply with in accordance with the Order?
- COVID 19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;
- Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contract workplaces; and
- Designation by covered contractors or person or persons to coordinate COVID 10 workplace safety efforts at covered contractor workplaces.
4. Does the Order apply to contractor employees performing work outside the United States?
No. The Order does not include contractor employees who only perform work outside the United States or its outlying areas.
5. When must contractor employees be vaccinated?
Covered contractors are required to ensure that all covered contractor employees are fully vaccinated for COVID 19, unless legally entitled to an accommodation, by December 8, 2021. After that date, all covered contractor employees must be fully vaccinated by the first day of the period performance on a newly awarded covered contract, 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.
6. Are there exemptions to the vaccination requirement?
Yes. The two major exemptions are disability or a sincerely held religious belief, practice, or observance. In addition, should a federal agency have an urgent mission – critical need for a covered contractor to have contractor employees begin work on a covered contract before becoming fully vaccinated, the agency may approve an exception for the covered contractor, but the covered contractor must ensure that the covered contractor employees are fully vaccinated within 60 days of beginning work on a covered contract or at a covered workplace.
7. Who determines whether a contractor employee is entitled to an accommodation for a disability, or because of a sincerely held religious belief, practice, or observance?
A contractor is required to undertake the accommodation determination regardless of the employee’s place of performance. However, if the agency is considered a joint employer, the agency and the covered contractor should review and consider what, if any, accommodation must be offered.
8. Are contractor employees who have had COVID 19 infection required to be vaccinated?
9. Does the Guidance apply to outdoor contractor or subcontractor workplace locations?
10. Does the Guidance apply to contractor employees who are authorized to work remotely?
Yes. The vaccination requirements apply to workers who have been authorized to work remotely. However, the residence of a contractor employee is not considered a covered contractor workplace, which means that individuals working remotely do not need to comply with masking or physical distancing requirements, even while working on a covered contract.
11. Does the Guidance apply to small business?
12. Will the requirements of the Order flow down to all lower tiered subcontractors?
Yes. The requirements of the Order apply to subcontractors at all tiers except for subcontractors solely for the provision of products.
13. What does the Order mean by work “in connection with” a covered contract?
It includes employees who perform duties necessary to the performance of the covered contract, but who are not directly engaged in performing the specific work called for by the contract such as: billing, human resources, and/or legal review.
14. Does the Guidance contain specific information regarding masks?
Yes. The following do not constitute masks for purposes of the Guidance: (i) masks with exhalation valves, vents, or other openings; (ii) face shields only (without masks); or (iii) masks with single layer fabric or thin fabric that does not block light.
15. Do contractors have to provide an accommodation to a covered contractor employee who is not able to wear a mask due to a disability or sincerely held religious belief, practice or observance.
Yes. Contractors may be required to provide such an accommodation and should review and consider what, if any, accommodations it must offer.
16. Are contractors required to monitor community transmission levels?
Yes. Contractors are required to check the CDC COVID 19 Data Tracker View website for community transmission information in all areas where they have a covered contractor workplace, at least weekly to determine proper workplace safety protocols.
17. Do contractors need to provide onsite vaccinations to employees?
No, but they should ensure that their employees are aware of convenient opportunities to be vaccinated.
18. Are contractors required to post signs regarding vaccination requirements?
Yes. Covered contractors must post signage at entrances to covered contractor workplaces providing information on safety protocols for fully vaccinated and not fully vaccinated individuals.
19. Is self attestation an acceptable substitute for documentation of proof of vaccine?
No. Covered contractors must view or retain a copy of the vaccination card or other approved form of proof of vaccination.
20. Does the Guidance supersede any state or local law that prohibits compliance with any of the workplace protocols set forth in the Guidance?
Yes. Note that the Guidance does not excuse non compliance with any applicable state law or municipal ordinance establishing more protective workplace protocols than those established under the Guidance.