On September 24, 2021, the Safer Federal Workforce Task Force released guidance, including FAQs, for offsite federal contractors and subcontractors. As expected, the guidance contains a vaccine mandate.
Will The Guidance Apply to Existing Contracts?
The guidance does not apply to contracts entered into prior to October 15, 2021 but will apply to the following:
- Contracts awarded prior to October 15 where performance is ongoing: “the requirements must be incorporated at the point at which an option is exercised, or an extension is made.”
- New contracts: “the requirements must be incorporated into contracts awarded on or after November 14. Between October 15 and November 14, agencies must include the clause in the solicitation and are encouraged to include the clause in contracts awarded during this time period but are not required to do so unless the solicitation for such contract was issued on or after October 15.”
Which Contracts/Subcontracts are Covered by the Guidance?
The following contracts are subject to the guidance:
- Contracts covered by the Service Contract Act (SCA),
- Contracts covered by the Davis-Bacon Act,
- Concessions contracts not otherwise subject to the Service Contract Act, and
- Contracts in connection with Federal property or land and related to offering services for Federal employees, their dependents, or the general public.
Which Contracts/Subcontracts are Excluded from the Guidance?
Certain types of contracts/subcontracts and employees are excluded, such as federal contracts or subcontracts valued at less than the “simplified acquisition threshold” of $250,000, manufacturers or suppliers of goods, grants, contracts with Indian Tribes under the Indian Self-Determination and Education Assistance Act, or employees who perform work outside the United States or its outlying areas.
However, the guidance does strongly recommend that contractors/subcontractors not covered by the guidance also implement these measures.
What is Contained in the Vaccine Mandate?
The guidance requires that employees who are “working on or in connection with” a covered contract, for a covered employer, in a covered workplace, be fully vaccinated against COVID-19 by December 8 unless they are entitled to an accommodation due to disability or religion.
Individuals are considered fully vaccinated for COVID-19 two weeks after they have received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine.
The guidance states individuals “are considered fully vaccinated if they have received COVID-19 vaccines currently approved or authorized for emergency use by the U.S. Food and Drug Administration (Pfizer-BioNTech, Moderna, and Johnson & Johnson [J&J]/Janssen COVID-19 vaccines) or COVID-19 vaccines that have been listed for emergency use by the World Health Organization (e.g., AstraZeneca/Oxford)”.
Key Highlights of the Guidance
In addition to the vaccine mandate, other key highlights of the guidance are as follows:
- The guidance applies to all covered contractors/subcontractors regardless of employer size
- Employees must provide proof of vaccination status either in original, digital or photocopy form; attestation of vaccination status will NOT meet the requirement under the guidance
- CDC guidance on masking and social distancing must be adhered to; in areas of high transmission fully vaccinated employees must also wear masks, with some exceptions
- The mandate also applies to remote employees; however, while working from home masking and social distancing guidance will not apply
- Employers must have a designate who is responsible for implementing this guidance; the designate must communicate the required workplace safety protocols and related policies by email, websites, memoranda, flyers, or other means and post signage at the workplace which explains the requirements in a readily understandable manner
- Employers will be required to adhere to this guidance, even if, the anticipated OSHA Emergency Temporary Standards (for 100 or more employees) contains more relaxed requirements.
Are Visitors Required to Be Fully Vaccinated?
The guidance stops short of requiring covered employers to seek proof of vaccination status for visitors, but does require employers to post signage at workplace entrances which provides information on safety protocols for fully vaccinated and not fully vaccinated individuals and instruct individuals to follow the appropriate workplace safety protocols while at the covered contractor workplace; “covered contractors may take other reasonable steps, such as communicating workplace safety protocols to visitors prior to their arrival at a covered contractor workplace or requiring all visitors to follow masking and physical distancing protocols for not fully vaccinated individuals.”
Next Steps for Employers
Employers will need to review their contracts to determine if they are required to comply. Subcontractors may also need to work with primary contractors for additional clarification on obligations by association with the primary contract. Further, impacted employers will need to determine if employees are “working on or in connection with” a covered contract to ensure that confirmation of vaccination status is received from these employees. Alternatively, employers may decide to require proof of vaccination status from all employees to reduce the administrative burden of trying to determine which employees would be subject versus those that are not.
Employers must also establish a process for evaluating vaccination documentation and should communicate this process to employees far enough in advance to ensure they are able to meet the December 8 deadline for full vaccination.
Employers should also be working with their existing COVID-19 designate to determine how they plan to communicate these safety protocols to employees. Employers who currently do not have a workplace COVID-19 designate should assign one.
Employers should also begin developing or obtaining and posting required signage to communicate safety protocols to visitors.
Lastly, employers should ensure that they engage in the interactive process with employees who request a reasonable accommodation due to disability or religion. Proper documentation should be maintained throughout this process.
Employers are also encouraged to consult their legal counsel for additional guidance on whether they are subject to this guidance and for assistance with reasonable accommodations obligations.