New Covid-19 Vaccine Guidance for Federal Contractors and Subcontractors

On September 24, 2021, the Safer Federal Workforce Task Force released new Guidance on COVID-19 workplace safety protocols for Federal Contractors and Subcontractors. This Guidance accords with President Biden’s September 9, 20201 Executive Order. That Order applies to most (but not all) Federal contractors and subcontractors with new contracts, new solicitations, and extensions or renewals of existing contracts entered into on or after October 15, 2021 for the provision of services, construction, concessions, and work on federal lands, for Executive Branch Agencies, i.e. the covered contractors. Covered contractor employees must conform to the following workplace safety protocols:
(1) Vaccination
Covered contractor employees must be fully vaccinated by December 8, 2021, except in limited circumstances where an employee is legally entitled to an accommodation. A person is fully vaccinated two weeks after receiving the second dose in a two-dose series or two weeks after receiving a single-dose vaccine. After December 8, 2021, covered contractor employees must be fully vaccinated by the first day of the period of performance on the contract. Where covered contractor employees are needed on an urgent or critical basis, the Federal Agency head may allow for an exception provided that the covered contractor employee is fully vaccinated within 60 days of beginning the urgent or mission-critical work. These urgent covered contractor employees must practice social distancing and masking in the interim.

Covered contractors must provide reasonable accommodations for those who communicate to the covered contractor they cannot be vaccinated because of disability, medical condition, or sincerely held religious belief, practice, or observance. Medical accommodation or exception requests should be treated at requests for disability accommodations.

Proof of vaccination must be provided by the covered contractor employee in the form of one of the following: (1) the CDC’s COVID-19 Vaccination Record Card from the healthcare provider or pharmacy; (2) a medical record documenting the vaccination, (3) a public health or State immunization record, (4) or any other official documentation verifying vaccine name, date of administration, and name of healthcare provider. Digital proof of vaccination is also allowed. Covered contractor employee attestations of vaccination, prior COVID-19 infection(s), and anti-body tests are not acceptable as proof of vaccination nor do they waive the requirement to be fully vaccinated.

(2) Masking and Social Distancing

Covered contractors must ensure individuals, including covered contractor employees and visitors, comply with the CDC’s guidance related to masking and physical distancing while in covered contractor workplaces. Anyone not fully vaccinated must be masked and practice physical distancing of six feet from all others at all times in offices, conference rooms, and other communal and workspaces that are indoors. Non-vaccinated people must also mask outdoors in crowded outdoor settings or where physical distancing is not possible. In areas of high or substantial community transmission, fully vaccinated people must wear masks indoors. In areas of low transmission, masking and physical distancing are not required for the fully vaccinated.

Masks must not have any vents, fit correctly over the nose and mouth, and must be worn consistently. The covered contractor may provide exceptions for mask wearing, for example where an individual is alone in an office with floor to ceiling walls and a closed door or while eating or drinking. Exceptions may also apply where mask wearing in impractical such as in high intensity activities or because of difficulty breathing. All exceptions for mask wearing must be approved in writing by an authorized representative of the covered contractor.

Covered contractors must check the CDC’s COVID-19 Data Tracker County View weekly to determine proper workplace safety protocols. That tracker can be found here: https://covid.cdc.gov/covid-data-tracker/#county-view.

(3) Coordinators for COVID-19 Safety Protocols

Finally, covered contractors must designate a person to coordinate implementation of and compliance with the Guidance. This person must provide the covered contractor employee with information on the COVID-19 workplace safety protocols. This person must also ensure the covered contractor employees comply with proof of vaccination status as set forth in the Guidance.

The Guidance does not require the covered contractor to provide vaccinations to their employees, but the covered contractor should make their covered contractor employees aware of where they can easily receive a vaccine. The prime contractor is responsible for ensuring the required clause to fully abide by the Guidance is incorporated into all first-tier subcontracts.

(4) Covered Contractors, Contractor Employees and Workplaces

A covered contractor means a prime contractor or subcontractor at any tier who is a party to a covered contract. Covered contractor employees mean full and part-time employees of a covered contractor working on or in connection with a covered contract or at a covered workplace.

Covered workplaces are defined as locations controlled by a covered contractor where a covered contractor employee is working or likely to be present. These workplaces include federal sites, buildings, rooms where the federal agency conducts business or is in the federal agency’s custody or control. The Guidance is very broad and covers all floors, buildings, sites, facilities, or any other areas that are controlled by a covered contractor, even if the covered contractor employee will only be present in one of these separate areas during the performance of the covered contract. The Guidance does allow an exception to the foregoing if the covered contractor can affirmatively prove that its covered contractor employees will not come into contact with any other covered contractor employees during the performance of the contract. It also covers outside workplaces, lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.

The Guidance applies to covered contractor employees who work remotely at their residences but, a covered contractor workplace does not include the covered contractor employee’s residence.

For more information and frequently asked questions, the full Guidance can be found here: https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20210922.pdf

OTHER RESOURCES
Jason Miller, Deputy Director for Office of Management and Budget, New Guidance on COVID-⁠19 Workplace Safety for Federal Contractors: https://www.whitehouse.gov/omb/briefing-room/2021/09/24/new-guidance-on-covid-19-workplace-safety-for-federal-contractors/

Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors: https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/

Your Guide to Masks: https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html

How to Protect Yourself & Others: https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html