On September 9, 2021, President Biden announced his six-prong Path out of the Pandemic Plan to combat the COVID-19 virus.
One prong of the plan is entitled “Vaccinating the Unvaccinated” and requires vaccinations for employees of federal government contractors, among others. To implement this part of his Plan, President Biden signed Executive Order 14042, which requires federal executive agencies to ensure that certain new covered contracts and contract-like instruments include a clause that provides that contractors and subcontractors at any tier must comply with guidance for workplace locations published by the Safer Federal Workforce Taskforce.
On September 24, 2021, the Safer Federal Workforce Task Force issued its much-anticipated guidance. Below are the key takeaways from the Task Force’s Guidance.
What contracts does the Task Force guidance apply to?
The guidance applies to “covered contracts,” which are any contracts or contract-like instruments that include the clause required by Executive Order 14042. Under the Executive Order, the clause must be incorporated into any new contracts or contract-like instruments, new solicitations for contracts or contract-like instruments, extensions or renewals of existing contracts or contract-like instruments, and the exercise of options on existing contracts or contract like instruments entered into on or after October 15, 2021 if:
- It is a procurement contract or contract like instrument for services, construction, or a leasehold interest in real property;
- It is a contract or contract-like instrument for services covered by the Service Contract Act;
- It is a contract or contract-like instrument for concessions, including any concessions contract excluded 29 CFR 4.133(b); or
- 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.
While not required, the White House has strongly encouraged federal agencies to incorporate a clause requiring compliance with the Task Force guidance into contracts that are not covered by Executive Order 14042 such as contracts entered into prior to October 15, 2021.
What employers are covered under the Task Force guidance?
The guidance applies to “covered contractors,” which are contractors or subcontractors at any tier who are parties to a covered contract.
What employees are covered under the Task Force guidance?
All “covered contractor employees” are required to abide by the guidance. This means any employees of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace.
Employees working “in connection with” a covered contract can include employees performing duties in areas like human resources, billing, and legal review. However, the guidance specifies that “covered contractor employees” also includes employees who are working at a covered contractor workplace, but not working on or in connection with a government contract.
Under the guidance, a “covered contractor workplace” is defined as a location controlled by a covered contractor where any employee working on or in connection with a covered contract is likely to be present during the period of performance for a contract. This extends to all buildings, sites, or facilities controlled by a covered contractor even if covered contract employees only work on one floor of a building, unless the contractor determines that its other employees will not come into contact with a covered contractor employee. For example, this would mean determining that no covered contract employees interact with non-covered contractor employees in building lobbies, elevators, stairwells, kitchens, or even parking garages.
Notably, the guidance does not address what level of “control” is required for a workplace to be a “covered contractor workplace.” Similarly, it does define the “period of performance for a covered contract.” Thus, the guidance leaves unanswered the question of whether this would be limited to the time that employee is actually working on the covered contract or if it would apply to the entire time that the employee could be assigned to work on the covered contract.
While the guidance also specifically exempts employees’ residences from the meaning of a “covered contractor workplace” it does not exclude employees working on a covered federal contract who are working 100% remotely from their residence.
What does the Task Force guidance require?
- Vaccination
Under the guidance, covered contractor employees must be fully vaccinated for COVID-19 by December 8, 2021. The only exception to the vaccine mandate is if the employee is legally entitled to a reasonable accommodation because of a disability or a sincerely held religious belief. Contractors are responsible for considering and dispositioning employee accommodation requests, regardless of where the employee works.
Under the guidance employees cannot solely attest to their vaccination status. Per the Task Force guidance, covered contractors must collect and review proof of vaccination from covered contractor employees.
- Mask Mandate and Social Distancing
The guidance also requires covered contractors to ensure that all individuals, including covered contractor employees and any visitors, comply with published CDC guidance for masking and physical distancing at a covered contractor workplace. These requirements do not apply to covered contractor employees that work remotely. Covered contractors are required to check the CDC’s Data Tracker County View website for community transmission information at least once a week to determine the proper workplace safety protocols it must follow.
Covered contractors can provide exceptions to mask wearing and/or physical distancing requirements if an individual is alone in a closed office, actively eating or drinking, engaged in high-intensity activity or activity in which a mask may get wet, or when wearing a mask would create a risk to workplace health, safety, or job duty as determined by a workplace risk assessment.
Like with the vaccination mandate, the guidance also allows exceptions to the mask wearing and physical distancing requirements if an employee is legally entitled to a reasonable accommodation because of a disability or a sincerely held religious belief.
- Designation of individual to coordinate COVID-19 workplace safety efforts
Finally, covered contractors must designate a person to coordinate compliance with the Task Force Guidance and implement its workplace safety requirements. This includes ensuring that covered contractor employees and visitors are provided with information on the required COVID-19 safety protocols through emails, websites, memoranda, flyers, and signage posted at covered contractor workplaces. The designated individual is also responsible for ensuring that covered contractor employees provide proper documentation of their COVID-19 vaccination status.
What is the timeline for implementation?
For contracts awarded prior to October 15, covered contractors will only have to implement the guidance’s requirements when an agency exercises an option, the contract is extended or renewed, or an agency issues a bilateral contract modification. For covered contracts awarded on or after November 14, contractors will have to implement the guidance’s requirements per the language of the contract.
