By Madison Plummer, Alan Chvotkin, Robert Nichols
September 24, 2021
In our September 17, 2021 Insight, Mandates Are Coming, we highlighted President Biden’s Executive Order 14042 (“EO”) that requires federal contractors to implement a host of COVID-19 safeguards in connection with federal government contracts or contract-like instruments.
As required by the EO, on September 24, 2021 the Safer Federal Workforce Task Force (“Task Force”) released guidance (“the guidance”) detailing the specifics of a new contract clause (“the clause”) and broad and far-reaching new protocols to be followed. The full guidance is here. Below is a quick overview of critical points in that guidance:
- Vaccination of covered federal contractor employees;
- Covered contractor employees must be fully vaccinated no later than December 8, 2021. After December 8, all employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract OR exercised/renewed contract when the clause has been incorporated.
- Covered contractors must review its covered employees’ documentation to prove vaccination, which includes a copy of a COVID-19 Vaccination Record Card or medical records indicating vaccination in either digital or hard copy. Prior COVID-19 infection history and recent antibody tests do NOT substitute or prove vaccination status.
- Employers must require accommodations for employees who communicate that they are not vaccinated due to a disability or sincerely held religious belief, practice, or observance.
- Employers are encouraged to provide easy access to vaccinations.
- Work From Home: Employees authorized to work from home must comply with the vaccination requirement but need not comply with the masking and physical distancing requirement.
- Masking and physical distancing while in covered worksites
- Covered contractors must ensure all individuals, both employees and visitors, abide by CDC guidance for masking and physical distancing at a covered contractor workplace.
- Areas of high or substantial community transmission require everyone, including fully vaccinated people, to wear a mask indoors and social distance, with limited exceptions for eating/drinking or for identification purposes. As of September 24, 2021, the CDC considers the entire continental United States to be an area of high transmission.
- Employers must require accommodations for employees who communicate that they cannot wear a mask due to a disability or sincerely held religious belief, practice, or observance.
- Contractor Designation of a person(s) to coordinate COVID-19 workplace safety efforts at covered worksites.
- Covered contractors must designate a person or persons to coordinate the implementation of the guidance at covered contractor workplaces.
In addition to the Task Force’s guidance, many federal contractors likely will be impacted by a forthcoming Department of Labor’s Occupational Health and Safety Administration (OSHA) regulation that will require employers of 100 or more employees either to (1) mandate full vaccination or (2) require weekly negative tests for unvaccinated employees. Contractors must comply with both the OSHA reg and the guidance.
Dates to Notice:
- October 8, 2021 – Federal Acquisition Regulation (“FAR”) Council to take initials steps to implement policy direction to government acquisition offices under the authority in FAR 1.4 to include the required contract clause. Expect an interim FAR amendment effective no later than October 15. Again, this clause will apply to all covered contracts, prime contractors, and flow down to any subcontractors at any tier.
- October 15, 2021 – Section 2(a) Clause required to be included in covered contracts and solicitations.
- November 14, 2021 – Requirements will be incorporated into newly awarded contracts.
- December 8, 2021 – All covered contractor employees working in a covered federal location must be fully vaccinated.
- Contract and contract-like instrument – an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law which includes, but is not limited to: mutually binding legal relationships obligating one party to furnish services (including construction); procurement actions; lease agreements; cooperative agreements; service agreements; licenses and permits; awards; notice of awards, task orders; purchased orders; option contracts; and bilateral modifications.
- Contractor workplace location – location where covered contract employees work, including a covered contractor workplace or Federal workplace.
- Covered contractor – prime contractor/subcontractor at any tier who is a party to a covered contract.
- Covered contractor employee – any full/part-time employee of a covered contractor working on or in connection with a covered contract OR working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.
- Covered contractor workplace – 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. This does NOT include a covered contractor employee’s residence.
- Federal workplace – any place, site, installation, building, room, or facility in which any Federal executive department or agency conducts official business or falls within its jurisdiction, custody, or control.
Nichols Liu will be carefully monitoring evolving developments and will update this information as it becomes available.
For any questions, please contact the authors or the Nichols Liu attorney with you regularly work.