As we previously reported, President Biden signed an executive order earlier this month to require federal contractor employers to ensure their employees working on or in connection with a qualifying federal contract (or subcontract) are “fully vaccinated.” The contours of the new requirement would rely on guidance to be issued by the newly-formed, “Safer Federal Workforce Task Force.” The executive order gave the Task Force until September 24, 2021 to release that guidance.
And just before the close of business on Friday, September 24, that is exactly what they did. The 14-page guidance document is available here. The “drop dead” date for vaccinating covered federal contractor employees is December 8, 2021. After that date passes, the deadline will be the first day of the period of performance on a newly awarded covered contract (or exercised option or extended or renewed contract).
The guidance can be broken down into three distinct parts: 1) rules for vaccinating all contractor employer employees working “on or in connection with” a covered contract (regardless of where the work is performed); 2) rules for anyone visiting the work site of a covered federal contractor employer; and 3) rules for employees performing work at a federal site.
Vaccination of Covered Workers
Regardless of where work is performed, all federal contractor employees who perform any work on or in connection with a qualifying federal contract or subcontract will need to be “fully vaccinated” by December 8, 2021. The guidance defines “fully vaccinated” as two weeks after the last shot in the vaccination course. So, if an employee receives either the Pfizer or Moderna vaccines, they are “fully vaccinated” two weeks after their second dose is administered. If they receive the Johnson & Johnson single-dose vaccine, they are fully vaccinated two weeks after their one and only dose. So far, the guidance is silent on the issue of vaccine booster shots.
Agency’s are being given an “out” here, though. The guidance notes: “Should a Federal agency have an urgent, mission-critical need for a covered contractor to have covered contractor employees begin work on a covered contract or at a covered workplace before becoming fully vaccinated, the agency head may approve an exception for the covered contractor—in the case of such limited exceptions, the covered contractor must ensure these covered contractor employees are fully vaccinated within 60 days of beginning work on a covered contract or at a covered workplace. The covered contractor must further ensure that such employees comply with masking and physical distancing requirements for not fully vaccinated individuals in covered workplaces prior to being fully vaccinated.”
Federal contractor employers are also responsible for requiring covered employees to provide one of the following documents to prove vaccination:
- A copy of the record of immunization from a health care provider or pharmacy;
- A copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r)
- 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 the health care professional or clinic site administering the vaccine.
Covered employees may satisfy their obligation by providing “digital copies” of the required documentation including, for example, digital photos, scanned images, or PDFs. An attestation of vaccination by the employee is not an acceptable substitute, regardless of whether or not it is “sworn” or how many Notaries Public witness it.
Rules for All Workers and Visitors at Federal Contractor Workplaces
The federal contractor vaccine mandate includes more than, well, a vaccine mandate. The order also requires covered federal contractor employers to require all employees, visitors, or other workers at contractor locations to follow CDC guidance for masking and physical distancing. In other words, the feds want to make sure you are taking proper precautions at “home” to keep the virus from spreading.
The employer is responsible for ensuring that: employees wear their masks consistently and correctly (over mouth and nose, not hanging off one ear or under the chin); masks are “appropriate” (meet the definition of “mask” and not made of mesh, for instance); and individuals who are not fully vaccinated wear a mask in crowded outdoor settings or during outdoor activities that involve sustained close contact with other people who are not fully vaccinated, “consistent with CDC guidance.”
Some of the CDC guidance—for unvaccinated individuals outdoors, for instance—can rely on the level of community spread in the area. Employers are responsible for checking the CDC COVID-19 Data Tracker County View website for community transmission information in all areas where they have “covered contractor workplaces.” Covered workplaces are defined as any employer-controlled location where a covered employee “is likely to be present during the period of performance for a covered contract.” (Note that the definition does not include an employee’s residence).
If community spread rises from low or moderate to substantial or high, contractors must implement the stricter protocols for high community spread as soon as possible. If the trend goes the other way, community spread must remain low and stable for a period of two weeks before contractors are allowed to loosen protocols to the lower community spread standard.
Working at a Federal Site?
Originally the administration considered only requiring vaccination for federal contractor employees who work at federal sites. That original course was abandoned, though, and the vaccine requirement extends to all employees performing work “on or in connection with” a qualifying contract, regardless of where work is performed. However, if work is to be performed on federal property, such employees must follow whatever COVID protocols are in place for federal employees at the site.
Designate a COVID-19 Workplace Safety Coordinator
Finally, the Task Force requires covered federal contractor employers to designate “a person or persons to coordinate implementation of and compliance with” the guidance. The designated individual(s) is responsible for informing employees, other workers, and visitors of COVID workplace safety protocols and for ensuring covered employees comply.
Questions About Enforcement
BCGi is getting a lot of questions about enforcement and, to be honest, there are some legitimate questions along those lines and, in the early days of implementation at least, it is not entirely clear how enforceable any particular provision will be. But if your organization is concerned with enforcement, we are missing the point of the Administration’s order.
The Executive Order was likely never meant to be a “stick” used to force contractor employers and their employees into a vaccination mandate. Rather, the order is much more likely meant to provide employers with the excuse they need and want to require vaccination of their workforce.
Most employers support mandatory vaccination against the virus that causes COVID-19 because they want and need a healthy workforce that can operate with minimal disruption. But requiring employees to be vaccinated can pit the employer against its own employees, causing further disruption and potentially ongoing employee relations issues. The order takes the “blame” off of the employer and places it squarely on the federal government.
The order also introduces a potential accommodation for those employees who refuse either due to a legitimate medical condition or a sincerely held religious belief, if such employees can be reassigned to work that is not “on or in connection with” a qualifying federal contract. Such an accommodation will likely require your legal team to become involved and someone will need to take a deep dive into your procurement contracts. Ironically, due to the complexity of determining whether or not a contract is covered (particularly when it comes to subcontracts), such an accommodation might not turn out to be reasonable, depending on the circumstances.
UPDATE (11/4/2021): Changes to the Federal Contractor Vaccine Mandate
If you have questions about this or any other federal contractor compliance issue, feel free to reach out to us at BCGi@Biddle.com.