On September 24, 2021, the Safer Federal Workforce Task Force issued guidance on President Biden’s Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors. The Task Force guidance provides details on the new requirements, including vaccine, masking and physical distancing requirements, that apply in all workplaces where at least one individual works on or in connection with a federal government contract or contract-like instrument (“covered contractor workplaces”). The COVID-19 safety protocols also apply to contractors and subcontractors working in covered contractor workplaces.
The Executive Order, which we previously analyzed here, also requires a new clause in contracts with the federal government addressing compliance with the Task Force’s COVID-19 safety protocols. Specifically, new contracts awarded on or after November 14, 2021 must include the clause providing that the contractor or subcontractor will comply with all guidance for contractor or subcontractor workplace locations published by the Task Force for the duration of the contract. For contracts awarded between October 15 and November 14, 2021, the clause is not required, unless solicitation of the contract was on or after October 15. Any solicitations between October 15 and November 14 must include the clause. For contracts awarded prior to October 15, 2021 where performance is ongoing, the clause must be incorporated when an option is exercised or an extension is made.
The guidance confirms that “covered contracts” include any contract or contract-like instrument that includes the clause described above. For further analysis of which contracts are covered, see our earlier Insight, available here.
Covered contractor employees must be fully vaccinated no later than December 8, 2021. Thereafter, covered contractor employees must be fully vaccinated by the first day of the period of performance of a new contract, or the first day of the period of performance on an exercised option or extended or renewed contract when the clause is included in the contract. The guidance defines “covered contractor employees” to include employees of covered contractors who work on or in connection with a covered contract or employees who work at a covered contractor workplace, which includes employees who are not themselves working on or in connection with a covered contract.
Covered contractors must require covered employees to provide proof of vaccination but are not required to verify the vaccination status of visitors to the workplace. Nevertheless, covered contractors must ensure all visitors adhere to masking and physical distancing requirements.
Individuals are considered fully vaccinated two weeks after they receive the second dose in a two-dose series or two weeks after they receive a single-dose vaccine. Covered contractors are not required to provide onsite vaccinations to their employees but should ensure their employees are aware of convenient opportunities to be vaccinated.
The guidance also confirms that individuals working remotely on a covered contract must comply with the vaccination requirement.
Limited exceptions apply where the federal agency has an “urgent, mission-critical need” for a covered contractor to have contractor employees begin working on the contract without being fully vaccinated. In such cases, the agency head may approve an exception for the covered contractor to ensure the contractor employees are fully vaccinated within 60 days of beginning work on the contract or at a covered workplace.
The safety protocols further explain that covered contractors are still obligated to provide legally required reasonable accommodations regarding vaccination and/or masking for employees who request them based on a disability or sincerely held religious belief, practice, or observance.
Covered contractors must ensure that contractor employees and visitors comply with CDC guidelines for masking and physical distancing. In areas of high or substantial transmission, fully vaccinated people must wear a mask in indoor settings. Fully vaccinated individuals do not need to physically distance regardless of transmission rates. Individuals who are not fully vaccinated must wear a mask indoors and in crowded outdoor settings or during outdoor activities involving sustained close contact with others who are not fully vaccinated. Individuals who are not fully vaccinated also must maintain six feet of physical distance from others, to the extent practicable.
Covered contractors may provide exceptions for masking and physical distancing when an individual is alone in an office with floor to ceiling walls and a closed door, or for a limited time when an individual is eating or drinking and maintaining proper distancing. Exceptions may also apply when employees are engaging in activities when the mask may get wet, high intensity activities where employees cannot wear a mask due to difficulty breathing, or activities where wearing a mask would create a risk to workplace health, safety, or job duty as determined by a workplace risk assessment. An authorized representative of the covered contractor must approve any exceptions to masking and physical distancing in writing.
Covered contractors are responsible for checking the CDC COVID-19 Data Tracker County View website at least weekly to determine the level of transmission in their area and the corresponding proper workplace safety protocols. If transmission rates increase from low or moderate to substantial or high, covered contractors should implement more protective safety protocols. If transmission levels decrease, however, from substantial or high to low or moderate, the level of transmission must remain at the lower level for at least two consecutive weeks before safety protocols recommended for areas of moderate or low transmission may be used.
Covered contractors must designate one or more individuals to implement compliance with the COVID-19 safety protocols. The designated person(s) must ensure that information on the COVID-19 safety protocols and related policies is provided to covered employees and any individual(s) likely to be present at a covered contractor workplace. Communication may be via email, websites, memoranda, or flyers. The designated person also must post signage setting forth the safety protocols including masking and physical distancing requirements.