Federal Contractors Must Show Proof of COVID-19 Vaccination by December 8

Alyssa L. Levy

On September 24, 2021, the White House’s Safer Federal Workforce Task Force released Guidance on President Biden’s September 9, 2021, Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors. The Guidance is mandatory and binding, not just a “guiding” interpretation, and explains the plain language of the Executive Order. Federal contractors and subcontractors that conduct business with the Federal government must mandate COVID-19 vaccines for their “covered contractor employees” by December 8, 2021, and ensure compliance with masking and physical distancing requirements while in “covered contractor workplaces,” both indoors and outdoors. Unlike in the private sector, there is no option to permit regular testing in lieu of vaccination. Federal contractors must designate a person(s) to coordinate the implementation of and compliance with the mandate.

“Covered contractor workplaces” include not just the obvious, but also anywhere there may be “interactions between covered contractor employees and non-covered contractor employees in those locations during the period of performance on a covered contract, including interactions through the use of common areas such as lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.” The burden will be on the covered contractor to “affirmatively determine that none of its employees in or at one building, site, or facility will come into contact with a covered contractor employee during the period of performance of a covered contract,” or all “other buildings, sites, or facilit[ies] controlled by a covered contractor” are considered covered contractor workplaces.

Similarly, a broad definition of “covered contractor employee” is used in this Guidance. For example, employees who are “working on a covered contract from their residence” are still “covered contractor employees” and subject to the vaccine mandate (though their residence is not a “covered contractor workplace,” so masking and social distancing requirements would not apply when they are working from home). Covered contractor employees also include not just employees who are “working on” a covered contract or “working at a covered contractor workplace” but also “employees of covered contractors who are not themselves working on or in connection with a covered contract,” as well as employees working “in connection with” a covered contract. “In connection with” is defined to include any “duties necessary to the performance of the covered contract . . . such as human resources, billing, and legal review.” The Guidance also “strongly encourage[s covered contractors] to incorporate similar vaccination requirements into their non-covered contracts and agreements with non-covered contractors whose employees perform work at covered contractor workplaces but who do not work on or in connection with a Federal contract,” such as agreements related to food services, security, or groundskeeping.

By December 8, covered contractor employees must show proof of vaccination (i.e. immunization records from a healthcare provider, vaccine cards, or other official documentation), which may be in digital form, and covered contractors are required to review this documentation to ensure compliance. Limited exceptions to the vaccination requirement exist, including a “mission-critical” need for work to begin prior to the contractor becoming fully vaccinated, or where an employee is legally entitled to an accommodation for a disability or sincerely held religious belief.

This requirement does not apply to existing projects, but after December 8, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, exercised option, or extended or renewed contract. Once this requirement is triggered, the prime contractor is responsible for ensuring that the required clause is incorporated into its first-tier subcontracts in accordance with the ramp-up process for incorporating a new clause into new or existing contracts outlined in the Guidance. The requirements then “flow down” from there to all subcontractors, except subcontracts solely for the provision of products. The Guidance also excludes contracts below the simplified acquisition threshold (currently $250,000), grants, certain agreements with Indian Tribes, and employees working outside the United States. As this Executive Order is promulgated pursuant to Federal law, it supersedes any contrary State or local law or ordinance.

This Executive Order was concurrently announced on September 9, 2021, with the requirement for private employers with 100 or more employees to mandate full vaccination for employees or require employees submit to weekly COVID-19 testing. However, private employers are still awaiting OSHA’s emergency temporary standard (“ETS”), which will outline the specifics of what private employers are expected to do. Employers must follow evolving COVID-19 mandates and are advised to contact counsel to navigate requirements related to their workforce.