New Vaccine Mandate Guidance Issued for Federal Contractors: 5 Things You Need to Know

On September 24, 2021, the Safer Federal Workforce Task Force (Task Force) issued much-anticipated guidance (Guidance) regarding President Biden’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. Issued September 9, 2021, Executive Order 14042 announced that parties who contract with the federal government would soon be subject to mandatory COVID-19 vaccinations. The Task Force’s Guidance sets forth required workplace safety protocols for federal contractors and subcontractors with a covered contract, including details on the implementation of President Biden’s vaccine mandate. PilieroMazza’s Labor & Employment Group addresses five critical developments from the Guidance below.

1. Which contracts are covered by the vaccine mandate?
   The mandate will apply to entities that enter into contracts (and contract-like instruments) above the Simplified Acquisition Threshold and that are subject to the Federal Acquisition Regulation (FAR). As of November 14, 2021, agencies will be required to incorporate a forthcoming FAR clause into new contracts, and as of October 15, 2021, the clause must be incorporated into contracts where an option is exercised or an extension is made. The clause will require that contractors comply with new vaccination requirements, as further detailed below. Contractors are obligated to flow down the obligations to subcontractors at any tier.

   Notably, the mere fact that a contract does not fall within these criteria or that it is awarded prior to November 14, 2021, does not guarantee that the mandate will not be applied to a contract. Indeed, the Guidance encourages agencies to incorporate the clause sooner.

   Contracts not subject to the FAR are not entirely exempt from vaccination requirements either. Per the Guidance, agencies responsible for such contracts, like concession contracts, must develop appropriate guidance by October 8, 2021, to incorporate into their contracts.

2. Which contractor employees are covered by the mandate?
   According to the Guidance, a covered contractor employee is “any full-time or 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 any employee working on or in connection with a covered contract (regardless of whether they work remotely) and any employee working at a contractor workplace (regardless of their work on a particular contract). Absent a need for a legally required accommodation, these employees will be subject to the vaccine requirement.
3. When does the requirement begin?
   Once the forthcoming FAR clause is incorporated into a contract, a covered contractor’s employees generally must be vaccinated no later than December 8, 2021, or by the start of performance. There is a narrow exception where an agency has an “urgent, mission-critical need” for a covered contractor to have employees begin work on a contract. In that instance, the employees may be granted a 60-day extension to get fully vaccinated.
4. What is a covered contractor’s responsibility to ensure employee vaccination?
   A covered contractor must review its covered employees’ documentation to prove vaccination status. Before the Guidance, many agencies merely required on-site contractor employees to attest that they were vaccinated. In addition to the ongoing on-site requirements, the Guidance places more onus on the covered contractors to actually verify their employees’ vaccination status. To comply with the Guidance, covered contractors must inspect proof of vaccination. Contractors may provide employees with reasonable accommodations for medical and religious needs in accordance with legal obligations.
5. Are there other noteworthy contractor obligations?
   The Guidance also requires covered contractors to comply with masking and social distancing requirements. Contractors must comply with Centers for Disease Control and Prevention (CDC) guidance, including requiring that employees wear CDC-approved masks in certain indoor settings in areas with high or substantial community transmission. Contractors also must monitor the CDC COVID-19 Data Tracker County View website on a weekly basis for transmission information and designate a workplace safety coordinator.

The COVID-19 pandemic continues to evolve and the Task Force will likely update its Guidance periodically. PilieroMazza’s Labor & Employment Group is monitoring the situation and is available to provide assistance as companies navigate compliance and related pitfalls. Should your company need updated vaccination policies or simply have a question regarding the Guidance, please do not hesitate to reach out.