In accordance with President Biden’s “Path Out of the Pandemic”, the Safer Federal Workforce Task Force (the “Task Force”) has issued “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” (the “Guidance”). [CLICK HERE for our September 13, 2021 eAlert explaining the various elements of the “Path Out of the Pandemic” plan.] Pursuant to Executive Order 14042, Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (the “Order”), federal contracts and contract-like instruments (as broadly defined in the Order) must contain a clause requiring the contractor and its subcontractors to comply with the Guidance starting October 15, 2021.
As set forth below, impacted employers must take prompt action to comply with the Guidance, including requiring employees to be fully vaccinated by December 8, 2021, and implementing other safety obligations.
The 14-page Guidance boils down to three significant workplace safety protocols:
- Covered employers must ensure that employees are vaccinated against COVID-19, except where an employee is legally entitled to an accommodation.
The vaccine mandate includes all covered contractor or subcontractor employees who perform all of some of their work in the United States – including those employees who work remotely or outdoors, those who work at either a covered contractor’s workplace or a Federal workplace, those who work full-time or part-time, and those in covered workplaces who are not themselves working on a government contract or contract-like instrument. An exception may be made only for employees legally entitled to a religious- or disability-based accommodation. Employees who have had a prior COVID-19 infection or have proof of antibodies still must be vaccinated. The Guidance’s requirements supersede any state or local laws that would prohibit mandatory vaccination.
Covered employees must be fully vaccinated by December 8, 2021, and, going forward, employees must be fully vaccinated by the first day of the period of performance on new contracts, exercised options, or extended or renewed contracts. A temporary exception may be made by the head of an agency to have covered employees begin work before becoming fully vaccinated based on “an urgent, mission-critical need”; in that case, the employer must ensure the employees are fully vaccinated within 60 days.
Employers are responsible for reviewing or obtaining a copy of either the original or a digital copy of proof of vaccination (e.g., vaccination record card, a record of immunization from a health care provider or public health or State immunization information system, a medical record showing immunization). Self-attestation is not an acceptable substitute for documentation.
As a reminder, the “Path Out of the Pandemic” plan also provides that all employers with 100 or more employees – not just federal contractors – must ensure that their employees are fully vaccinated or require unvaccinated employees to produce a weekly negative COVID-19 test. The details on this mandate will be issued by the Occupational Safety and Health Administration in the form of an Emergency Temporary Standard (“ETS”). We are continuing to watch for the ETS and will alert you as soon as it is issued.
- Covered employers must ensure compliance with masking and physical distancing requirements by all individuals in their workplaces.
All covered employers must implement COVID-19 safety requirements for masking and physical distancing in accordance with published Centers for Disease Control and Prevention (“CDC”) guidelines for employees, visitors, and others at covered contractor worksites (including outdoors). Unlike the vaccination mandate, mask and social distancing requirements do not apply to remote workers as the definition of a covered workplace expressly excludes an employee’s residence. According to the Guidance, fully vaccinated people do not need to physically distance but may need to wear a mask depending on the level of community transmission in the area; unvaccinated individuals must, to the extent practicable, maintain a distance of at least six feet from others at all times and wear a mask indoors and in certain outdoor settings regardless of the level of community transmission in the area.
Employers may be required to provide accommodations for employees who cannot wear a mask because of a disability or sincerely held religious belief, practice, or observance. Employers also may make certain exceptions to mask-wearing and distancing (for example, on a limited basis while eating or drinking or alone in an enclosed office) where consistent with CDC guidelines and approved in writing by a duly authorized representative of the company.
- Covered employers must designate a person or persons to coordinate COVID-19 workplace safety efforts in their workplaces.
Finally, the Guidance requires covered employers to designate someone to coordinate the implementation of workplace safety protocols. The designated individual(s) must ensure that information on the protocols is communicated to employees and all other individuals likely to be present at covered workplaces and that employees comply with the requirement to provide vaccination documentation. These responsibilities can comprise some or all of the employee’s regular duties.
To summarize, what must covered employers do now?
- Identify covered workers and workplaces.
- If you have not already done so, develop and communicate a mandatory vaccination plan to covered employees immediately. Time is of the essence as employees will need to receive their second dose of a two-dose series (such as Pfizer or Moderna) or the first dose of a single-dose series (such as Johnson & Johnson) by November 24, 2021, in order to be fully vaccinated by December 8, 2021.
- Establish a plan to review or receive proof of vaccination. Keep in mind that vaccination records should be treated as confidential, medical records and kept separate from personnel records.
- If an employee raises an objection to the vaccination or mask-wearing requirements based on a disability or sincerely held religious belief, practice, or observance, engage in the interactive process to determine if an accommodation can be offered. If the agency that is a party to the covered contract is considered a joint employer, both the agency and the employer are responsible for considering what, if any, accommodation must be offered. We advise you to seek counsel before determining that an accommodation is not possible.
- Ensure mask and physical distancing protocols that comply with published CDC guidelines are in place at all covered worksites. Post signage at entrances to covered workplaces informing employees and visitors about the requirements. Regularly check community transmission information in all areas where workplaces are located and adjust protocols as needed.
- Designate the employee(s) responsible for coordinating COVID-19 workplace safety efforts.
Please note that a coalition of federal workers, service members, and federal contracting employees have filed suit in federal court for the District of Columbia challenging the constitutionality of the Order, among other things, and Arizona’s attorney general has filed suit claiming President Biden’s vaccination mandates are discriminatory as they unfairly favor undocumented immigrants. Both cases are in the early stages and we will be monitoring them for significant developments impacting private employers.
 Specifically, the Order requires federal agencies to include an implementing clause developed by the Federal Acquisition Regulatory Council on the following timeline in any contract or contract-like instrument for procurement of services, construction or leasehold interest in real property, for services under the Service Contract Act, for concessions, or in connection with Federal property or lands and related to offering services for Federal employees, their dependents or the general public:
· new contracts awarded on or after November 14, 2021;
· new solicitations issued on or after October 15, 2021, and contracts awarded pursuant to those;
· extensions or renewals of existing contracts and orders awarded on or after October 15, 2021; and
· options on existing contracts and orders exercised on or after October 15, 2021. 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 where the solicitation for such contract was issued before October 15.
If you have any questions relating to this eAlert, how to comply with the Guidance, or any other COVID-19 related issue, please reach out to the NFC Attorney with whom you typically work or call us directly.