On Thursday, Nov. 4, 2021, the White House announced that the deadline for federal contractors and subcontractors to become fully vaccinated has been extended until Jan. 4, 2022. Federal contractors will have an additional four weeks to comply with the requirements, as the original deadline was Dec. 8, 2021. This announcement comes in light of the release of the Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS), which mandates COVID-19 vaccinations or weekly testing for employers with 100 or more employees. The deadline for employers covered by the ETS to get their workforce vaccinated is also Jan. 4, 2022. Because federal contractors may have some workplaces subject to the requirements for federal contractors and other workplaces subject to the requirements of the new ETS, one consistent deadline will make it easier to fully comply.
Strict Requirements for Federal Contractors and Subcontractors
President Biden signed Executive Order 14042 on Sept. 9, 2021, which implemented COVID-19 safety measures for federal service contractors and subcontractors. The Executive Order specifically directs the Safer Federal Workforce Task Force to issue COVID-19 safety guidance for workplaces. Guidance was issued on Sept. 24, 2021, but federal contractors still have many unanswered questions.
The Safer Federal Workforce Task Force’s guidance includes three key COVID-19 safety protocols:
- Mandatory Vaccination. Federal contractors with a covered contract are required to mandate COVID-19 vaccination of covered contractor employees. Covered contractors do not need to provide onsite vaccinations to employees, but they must ensure that employees are aware of convenient opportunities to get vaccinated. Pursuant to the guidance, COVID-19 testing is not permitted as an alternative to vaccination, unless it is deemed a reasonable accommodation for covered employees with a religious or medical exemption.
- Masking and Physical Distancing. Compliance by employees and visitors with CDC masking and physical distancing mandates while in covered contractor workplaces, including both indoor and outdoor facilities, is required.
- Coordinator Designation. Federal contractors with a covered contract must designate a person or persons to coordinate the implementation of and compliance with COVID-19 workplace safety efforts.
Covered federal contracts awarded prior to Oct. 15, 2021 where performance is ongoing must incorporate the requirements at the point at which an option is exercised or an extension is made. New covered contracts awarded on or after Nov. 14, 2021 must incorporate the requirements at the time the contract is awarded. Between Oct. 15, 2021 and Nov. 14, 2021, agencies must include a clause in their solicitations that the contractor must comply with the guidance. During this time period, agencies are also encouraged to include such a clause in contracts actually awarded. However, agencies are not required to do so unless the solicitation for such contracts was issued on or before Oct. 15, 2021.
Most Federal Contractors and Subcontractors are Covered
The language in the guidance is very broad and includes the majority of federal contracts and subcontracts, including contracts for services under the Service Contract Act, concessions contracts under the Service Contract Act, contracts for services, construction or a leasehold interest in real property, and contracts in connection with federal property or land and related to offering services to federal employees, their dependents or the general public. Moreover, any full or part-time employee working on or in connection with a covered government contract performed in whole or in part in the United States is subject to the vaccine mandate. This includes employees who only indirectly support the government contract, including human resources, billing and legal review as well as individuals working in the same workplace as covered employees. The vaccine mandate also covers employees working entirely remote from a private residence and employees who previously had COVID-19.
Two Limited Exemptions
The guidance includes two very narrow exemptions. Employees who do not receive the vaccine because of a disability, including a medical condition, or because of a sincerely held religious belief, practice or observance are exempt from the vaccine mandate. Covered federal contractors must review and consider what accommodations are reasonable in a given situation. However, the guidance defers entirely to federal contractors to determine when an employee is entitled to an accommodation based on a sincerely held religious belief, practice or observance.
Several Issues Remain Unresolved
Although the Safer Federal Workforce Task Force has provided answers to several frequently asked questions, there remains widespread confusion amongst federal contractors over many critical details and terms of the guidance. Here are six important issues that have yet to be resolved:
- How Can Federal Contractors Comply With Changes to the Guidance? On Sept. 30, 2021, the Federal Acquisition Regulatory Counsel issued guidance to agencies on how to incorporate the vaccine mandate into their contracts, including a model clause directing contractors to comply with “all guidance.” However, since the Safer Federal Workforce Task Force’s guidance was released, it has been constantly evolving. To remain informed of the persistent changes, covered contractors would need to closely monitor the updates in order to comply with “all guidance.” This appears to be a daunting task and may prove to be an unrealistic expectation. More concrete guidance from the Federal Acquisition Regulatory Counsel is expected later this month.
- What if a Contractor Refuses to Modify the Contract? The vaccine mandate does not apply to contracts entered into before Oct. 15, 2021, but the guidance strongly encourages agencies to modify those contracts and include the mandate. However, in order to modify a contract, both the agency and the contractor must agree to the modification. The guidance does not provide any direction in situations where a contractor refuses to accept the addition of the mandate into a contract awarded before Oct. 15, 2021.
- What Is a Contract for Products? The vaccine mandate does not apply to federal contracts solely for the provision of products. The guidance fails to provide parameters as to what constitutes a contract solely for the provision of products, so agencies are interpreting that requirement in different ways as they begin to implement the mandate. The lack of any clear definition of a contract for products has caused great confusion for federal contractors.
- What Costs Will Be Reimbursed? It is unclear how the costs of the vaccine mandate are going to be allocated because the guidance does not specify what costs an agency will be reimbursed for. For example, the guidance does not provide whether agencies will be reimbursed for paid time off related to an employee getting vaccinated.
- What Is a Reasonable Accommodation? The guidance completely defers to federal contractors to determine what is a reasonable accommodation for employees who have a disability or a sincerely held religious belief, practice, or observance. Many federal contractors are struggling to decipher what constitutes a reasonable accommodation.
- Who Works “in Connection With” a Federal Contract? The vaccine mandate covers employees who work directly on or in connection with a federal contract. The guidance provides that employees work in connection with a federal contract if they perform duties necessary to the covered contract without directly working on the contract. When actually applied by federal contractors, this definition is both subjective and vague. Federal contractors have faced difficulties categorizing employees who occasionally work in connection with a federal contract but otherwise have no involvement.
KJK will continue to closely monitor updates to the federal contractor requirements and any clarification on many important details that remain ambiguous. For more information or to discuss further, please contract Rob Gilmore at firstname.lastname@example.org or 216.736.7240.