Hit Me with Your Best Shot - Federal Contractor Vaccine Mandates

UPDATED as of December 8, 2021: The federal contractor vaccination mandate has been temporarily enjoined, as described in our update.

On September 24, 2021, the Safer Federal Workforce Task Force (“Task Force”) issued its COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (“Guidance”) pursuant to President Biden’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO 14042”).  EO 14042 requires that covered federal contractors implement and enforce certain workplace safety protocols, including mandatory vaccinations.  In the Guidance, the Task Force provides covered contractors with additional details on when and how the safety protocols must be implemented and enforced.  Note that the Guidance is in addition to the requirements for vaccination/testing and masking when an employee is entering a federal building to perform services.  Contrary to some news reports, neither EO 14042 nor the Guidance require that ALL employers doing business with the federal government implement mandatory vaccination programs.  Federal contractors need to consider carefully the requirements contained in Guidance (and any subsequent guidance from the Task Force) to determine when its mandates apply and whether preparation is needed now for compliance in the future.  Particularly in a tight labor market, it is important to know when it is necessary to hit your employees with the news about the shot.
 

When Is an Employer a Covered Federal Contractor?

First and foremost, federal contractors need to know when they are covered by EO 14042 and the implementing Guidance.  Not all federal contractors will be required, by law, to comply.  While the coverage analysis can be complicated, here are the most important factors that determine coverage.

1. Do you have or anticipate having a federal contract to provide services valued at $250,000 or more, or a federal subcontract to provide services related to such a contract?  We find that some companies do not realize that they have a federal contract or subcontract.  A “contract” (or “contract-like instrument”) may exist even when there is not a formal written agreement, signed by both parties.  For example, a purchase order is a contract.  You need to know if you have any obligation or agreement to provide services either to a federal agency or to a contractor of a federal agency when the services you provide are necessary to fulfill the federal contract.  Once you know if you have a federal contract or subcontract to provide services, you will need to determine if the contract (or the services provided under the contract) is:
 

• For services covered by the Service Contract Act (generally to provide services in the United States through the use of employees who are not exempt from overtime under the Fair Labor Standards Act)
• For services covered by the Davis-Bacon Act (generally to provide construction services in excess of $2,000 to the federal government, a federal agency or the District of Columbia)
• For concessions not covered by the Service Contract Act; or
• Connected to providing services for Federal employees, their dependents or the general public in connection with federal property or land.

If the contract falls within one of the categories listed above and is valued at $250,000 or more, the federal government or agency will be required to include a clause that requires compliance with the Guidance (and that the contractor pass down the clause to subcontractors who provide services exceeding $250,000 that are necessary for the completion of the contract) in future contracts (or amendments or modifications to those contracts) entered into after October 15, 2021.

2.  Is there a clause in a contract that requires compliance with the Guidance?  A contract is not a “covered contract” subject to the Guidance until the clause requiring compliance with the Guidance is in the contract.  As noted above, the federal government or agencies will be required to add the clause to certain covered contracts for services entered into on or after October 15, 2021 (although, under the Guidance, the inclusion of the clause is permissive between October 15 and November 14 if the solicitation for the contract was issued prior to October 15).  The clause will read as follows:
 

The Task Force also encourages federal agencies to include the clause in contracts that do not require compliance.  Based upon class deviations published by several agencies, such as the GSA, Department of Defense, and the Veterans Administration, we expect this to occur.  So, if you have a federal contract or subcontract to provide goods (or “supplies”) only, for example, the federal government or agency may still include a clause in the contract requiring that you abide by the Guidance, even though it is not required to do so.  Similarly, if you only receive grants from the federal government, the agency that provides the grant is not required to include a clause in the grant requiring that you abide by the Guidance, but may do so.  Further, while federal agencies are not required to place the clause in contracts for less than $250,000, the Task Force encourages the federal agencies to do so (and several agencies, including those listed above, have already issued memos strongly encouraged contracting officers to do so).  If the clause is in the contract, the contractor (and subcontractors at any tier with subcontracts for services exceeding $250,000) must comply with the Guidance for the duration of the contract.

 

What Are You Required to Do, if Covered?

The Guidance contains three general requirements:
 

1. Mandating COVID-19 vaccinations for all “covered contractor employees,” unless the employee is legally entitled to an accommodation;
2. Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces; and
3. Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

Each of these requirements are covered in more detail below.  

Vaccination Requirements:

Once a company is covered by the Guidance, it must ensure that all “covered contractor employees” are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation (as determined by the contractor).  The vaccination mandate applies to employees who have had a prior COVID-19 infection.  Covered contractors should ensure their employees are aware of convenient opportunities to be vaccinated

The initial deadline for covered employees to be fully vaccinated is December 8th.  After December 8th, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, an exercised option or an extended, renewed or modified contract that contains the clause requiring compliance with the Guidance.  We are awaiting further guidance as to whether contractors in these circumstances will have a grace period during which they will need to mandate vaccinations and ensure their employees comply if performance on the option, for example, begins before there is sufficient time for the employees to become fully vaccinated.  The Task Force included a provision in the Guidance permitting federal agencies to allow a covered contractor to begin work on a contract before the covered contractor employees are fully vaccinated as long as the covered employees are fully-vaccinated within 60 days of beginning work on a covered contract or at a covered workplace, which suggests that grace periods are permissible, but not required.   

Covered contractors will need to identify which employees must be vaccinated (unless a contractor wishes to apply the mandate to all employees, regardless of whether they are “covered”).  Under the Guidance, a covered contractor employee subject to the vaccination requirement is (1) an employee who performs any work on or in connection with a covered contract or (2) an employee who works at the same workplace as an employee who performs work on or in connection with a covered contract, regardless of whether they work on or in connection with a covered contract.  Remote employees are covered contractor employees if they are working on a covered contract, even if they never work at the contractor’s workplace.  

To comply with the Guidance, a covered contractor must review its covered employees’ documentation to prove vaccination status.  Employee attestations or certifications are not enough.  Permissible documentation includes: a copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card, a copy of medical records documenting the vaccination, a copy of immunization records from a public health or State immunization information system, or a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine. Employees can provide the documentation to the contractor in any format, including a digital photograph, scanned image, or PDF.

Masking and Physical Distancing Requirements at Covered Contractor Workplace

Under the Guidance, covered contractors must also require proper masking and physical distancing at their covered workplaces.  The Task Force defines a covered workplace as 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. An employee’s residence is not a covered contractor workplace.  As a result, these requirements do not apply to remote employees, unless they come into a covered workplace.

The masking and physical distancing requirements vary based on whether the employee is vaccinated or not.  For vaccinated employees, they must wear a mask indoors when there is high or substantial community transmission in the area (per the CDC).  There are limited exceptions in situations when an individual is alone in an office with floor to ceiling walls and a closed door and for a limited time when eating or drinking and maintaining appropriate distancing. In areas of low or moderate community transmission, fully vaccinated people do not need to wear a mask.  

To determine the current community transmission level, covered contractors must check the CDC COVID-19 Data Tracker County View website for community transmission information in all areas where they have a workplace at least weekly.  When the level of community transmission is reduced from high or substantial to moderate or low, the masking protocols for vaccinated employees can only be changed once the level remains at the lower level for at least two consecutive weeks.

Employees who are not fully vaccinated must wear a mask indoors and in crowded outdoor settings or where sustained close contact with other unvaccinated people may occur.  This requirement applies regardless of the level of community transmission in the area.  To the extent practicable, individuals who are not fully vaccinated should maintain a distance of at least six feet from others at all times, including in offices, conference rooms, and all other communal and work spaces.

Covered contractors must consider requests for exceptions to the masking requirement based on a medical condition or religious beliefs.  Covered contractors may also provide exceptions in activities in which: a mask may get wet; high intensity activities where employees are unable to wear a mask because of difficulty breathing; or activities for which wearing a mask would create a risk to workplace health, safety, or job duty as determined by a workplace risk assessment. Exceptions must be approved in writing by a duly authorized representative of the covered contractor.

Designation of Coordinator(s)

In addition, covered contractors must designate a person or persons to coordinate implementation of and compliance with the Guidance.  The designated individuals do not need to be dedicated to compliance with the Guidance – they can have other job duties.  The designated coordinator(s) must ensure that information on required COVID-19 workplace safety protocols is provided to covered contractor employees and all other individuals likely to be present at covered contractor workplaces in a readily understandable manner.  The Task Force notes in its Guidance that covered contractors should post signage at entrances to covered contractor workplaces providing information on safety protocols for fully vaccinated and not fully vaccinated individuals.  Contractors may also communicate workplace safety protocols to visitors prior to their arrival.

We will continue to monitor additional guidance from the Task Force.  Any additional guidance will also apply to covered contractors, so it is important for covered contractors to be aware of new developments.  In the meantime, companies with federal contracts should consider how it will comply with the Guidance when they become covered.  Depending on the nature of the federal contracts currently held or anticipated, contractors should also consider whether they want to start a mandatory vaccination requirement before becoming covered to ensure that the company is able to comply with the Guidance when it becomes covered.

If you have questions related to the Executive Order or Task Force Guidance or any other obligations with which federal contractors must comply, please contact Tami A. Earnhart or any other attorney in our Labor, Employment and Immigration Group with whom you work.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.