COVID-19 Vaccinations Required for Covered Contractors by December 8, 2021

On September 24, 2021, in response to Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, the Safer Federal Workforce Task Force issued mandatory guidance (the “Task Force Guidance”) applicable to many federal government prime contractors and subcontractors, aimed at decreasing the spread of COVID-19.  Specifically, in addition to complying with any requirements or workplace safety protocols in place at a Federal workplace in which a contractor or subcontractor employee works, “covered contractors” are required to:

1. Ensure covered contractor employees are fully vaccinated against COVID-19 by December 8, 2021;
2. Ensure covered contractor employees and visitors comply with masking and physical distancing guidance at covered contractor workplaces; and
3. Designate a COVID-19 workplace safety coordinator, or coordinators, at covered contractor workplaces.

The Task Force will update this guidance as the Centers for Disease Control (“CDC”) changes its COVID-19 guidance based on “the circumstances of the pandemic and public health conditions.”  The guidance directs the Federal Acquisition Regulation (FAR) Council to develop a clause requiring compliance with this guidance by October 8, 2021, and asks agencies with non-FAR contracts to develop appropriate guidance for incorporation in covered agreements in accordance with the same timeline.

While compliance with the Task Force Guidance is not required until a company receives a contract that contains a clause implementing the vaccination requirements, or a modification or option extension to an existing contract that contains such a clause, government contractors that anticipate the award of a covered contract, or the extension of a covered contract, should immediately develop a compliance plan, as discussed in more detail below.

Which Government Contractors Must Comply With The Task Force Guidance?

The Task Force Guidance applies to “covered contractors,” which are companies that are a party to a “covered contract.”  “Covered contracts” include FAR-based procurement contracts over the Simplified Acquisition Threshold (currently $250,000) for services or construction that contain the applicable vaccination contract clause (to be issued by the FAR Council). The Task Force Guidance acknowledges that the clause will not apply to prime contracts or subcontracts for the “manufacturing of products,” nor subcontracts solely for the “provision of products.”  This leaves open the question of whether prime contracts for the provision of products in which the prime contractor is not a manufacturer (e.g., a reseller or distributor) will contain the vaccination clause. 

Also, while the Executive Order exempted prime contracts and subcontracts at or below the Simplified Acquisition Threshold, the Task Force Guidance only referred to this exemption in the context of prime contracts, leaving open the question of whether the clause will apply to subcontracts with a value at or below the Simplified Acquisition Threshold.  Higher-tiered contractors are responsible for identifying covered subcontracts and including the applicable vaccination contract clause in such lower-tier subcontracts at all tiers.

Additionally, the definition of “covered contracts” includes non-procurement contracts such as lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, licenses, permits, and contracts in connection with Federal property or land and related to offering services for Federal employees, their dependents, or the general public.  Grants, however, are not “covered contracts.”

While not required, the Task Force “strongly encourages” federal agencies to incorporate a clause requiring compliance with the Task Force Guidance in non-covered contracts and prior to the deadlines required by the Executive Order.  Therefore, it is important to check all future solicitations and contracts to determine whether compliance with the Task Force Guidance is required, even if the contract would not otherwise be a “covered contract.”

What Does The Task Force Guidance Require?

The Task Force Guidance lays out three key requirements for all covered contractors.  Covered contractors must:  (i) ensure all “covered contractor employees” are fully vaccinated by December 8, 2021, (ii) require all individuals at a “covered contractor workplace,” including covered contractor employees and visitors, to wear masks and physically distance, and (iii) designate a workplace safety coordinator at all covered workplaces. 

1. Vaccination Of Covered Contractor Employees

Covered contractors must ensure that all “covered contractor employees” are fully vaccinated by December 8, 2021, unless an employee is entitled to a religious or medical related accommodation from the requirement.  After December 8^th, all covered contractor employees must be fully vaccinated by the time the period of performance begins on a new contract, contract extension, or option period containing the applicable vaccination clause.  Notably, there is no COVID testing substitution for the vaccination requirement.

“Covered contractor employees” include all full-time and part-time employees of a covered contractor that work in the U.S. and its territories on a covered contract or on duties necessary for the performance of the covered contract, such as billing, human resources, or legal work.  It also includes those employees who work at a “covered contractor workplace,” even if the employee’s work is unrelated to the covered contract.  A “covered contractor workplace” is any covered contractor controlled location within the U.S. and its territories, at which an employee working on or in connection with a covered contract “is likely to be present during the period of performance” of a covered contract.  This includes both indoor and outdoor workplace locations.  While separation within a building is possible, there are stringent requirements that must be adhered to prior to determining that employees in a section of a building do not need to be vaccinated.

Federal agencies may approve exceptions for the vaccination mandate if they “have an urgent, mission-critical need for a covered contractor to have covered contractor employees begin work . . . before becoming fully vaccinated.”  But, even if an exception is approved, the Task Force Guidance requires that the covered contractor ensure covered contractor employees under the exception become fully vaccinated within 60 days of beginning work on the covered contract, unless they are eligible for an accommodation.

2. Masking And Physical Distancing While In Covered Contractor Workplaces

In addition to ensuring that covered contractor employees are fully vaccinated, covered contractors must ensure that all individuals working at a covered contractor workplace, including visitors, adhere to CDC guidance for masking and physical distancing. 

The masking and physical distancing requirements applicable to a covered contractor workplace differ depending on the level of community transmission in the county where the workplace is located, as tracked by the CDC COVID-19 Data Tracker County View website.  Notably, while fully vaccinated people must wear a mask in indoor settings in counties with high or substantial community transmission (absent limited exceptions explained in the guidance), fully vaccinated people do not need to wear masks in counties with low or moderate community transmission.  Regardless of the level of community transmission, individuals who are not vaccinated must wear a mask indoors and in specified outdoor settings and, to the extent practicable, physically distance from others at all times.

3.  Designation Of A Person Or Persons To Coordinate COVID-19 Workplace Safety Efforts At Covered Contractor Workplaces

Covered contractors must appoint a duly authorized representative to coordinate COVID-19 workplace safety efforts at all covered contractor workplaces.  The COVID-19 workplace safety coordinators must provide the COVID-19 workplace safety protocols in an “understandable manner” to all “individuals likely to be present at covered contractor workplaces.”  They also must ensure that covered contractor employees provide proper proof of vaccination, as described in the Task Force Guidance.

What Do I Need To Do Now?

There are three steps you can take now to ensure you are ready for compliance when the Task Force Guidance begins to be incorporated in covered contracts:

1. Review your federal government contracts and subcontracts at all tiers to determine whether you have a contract that is likely to be modified to include the vaccination clause;
2. Carefully review all Federal Government solicitations to determine whether your proposal could result in the award of a covered contract;
3. If you are or are likely to become a covered contractor:     
   1. Identify which workplaces and employees will be covered by the clause;
   2. Designate which individual(s) will be your COVID-19 Workplace Safety Coordinator(s) at covered contractor workplaces;
   3. Start collecting vaccination information from covered contractor employees and begin preparing signage and mandatory policies and procedures implementing the Task Force Guidance on vaccination, masking, and social distancing requirements; and
   4. Notify your lower-tier subcontractors that will be covered contractors of these impending requirements to provide them with an opportunity to take steps towards compliance.

Foley has created a multi-disciplinary and multi-jurisdictional team, which has prepared a wealth of topical client resources and is prepared to help our clients meet the legal and business challenges created by the Task Force Guidance.  To discuss how the new Task Force Guidance may impact your business, contact Erin L. Toomey ([email protected]), David T. Ralston ([email protected]), Frank S. Murray ([email protected]), Julia Di Vito ([email protected]), or Megan Chester* ([email protected]).  The Executive Order and Task Force Guidance will also be discussed at Foley & Lardner LLP’s upcoming annual Government Contracts Webinar on Wednesday, October 6, 2021 from 9 am – 12 pm ET.  Please register here for the webinar.