On September 16, 2021, President Biden released new guidance on implementing COVID-19 mandates for businesses working with the federal government. PilieroMazza’s Labor & Employment Group highlights below important guidelines government contractors need to follow in order to comply. Please visit this link to access our September 10, 2021 Client Alert on this topic.
New Developments on Complying with COVID-19 Mandate
The Safer Federal Workforce Task Force (Task Force) confirmed on Monday that, for the time being, unvaccinated employees of government contractors will continue to be permitted access to a federal worksite as long as they provide regular proof of a negative COVID-19 test. According to the guidance, “Prior to being contractually required to be vaccinated, onsite contractor employees who are not fully vaccinated and are not part of an agency testing program must provide proof of a negative COVID-19 test from no later than the previous 3 days prior to entry to a Federal building.” Based on this guidance, for now it appears there will not be an agency-wide mandate without a corresponding contractual requirement.
PilieroMazza attorneys continue to expect that new and renewed contracts will include a soon-to-be-drafted FAR clause detailing vaccine requirements. For now, it appears that this same requirement will not be applied to contracts that do not include this FAR clause. However, the Task Force encourages agencies to incorporate vaccination requirements consistent with applicable law. This might involve including requirements in advance of incorporating the applicable FAR provision or incorporating requirements into contracts not covered by Executive Order 14042, such as contracts under the Simplified Acquisition Threshold. Some agencies have already begun mandating vaccinations independently.
Federal employees must be vaccinated regardless of where they are working. In other words, federal employees working remotely are also bound by the mandate. Of course, whether this same rule will be applied to government contractors remains to be seen. November 22 marks the date by which federal employees, barring a need for a religious or medical accommodation, must be fully vaccinated.
What Does This Mean for Government Contractors?
For the time being, there is not likely to be a uniform standard to apply across all contracts. Federal contractors will continue to have the option of allowing employees to present a negative test within 72 hours of reporting to a federal worksite in lieu of vaccination unless the contractor, as the employer or the client, enforces a more restrictive policy. The policy is not likely to reach federal contractor employees who do not work onsite, at least until the client advises otherwise or a FAR provision is modified into your contract down the road.
If you need assistance in navigating COVID-19 compliance and related pitfalls, please contact a member of PilieroMazza’s Labor & Employment Group. We will continue to keep you informed of any new guidance.