The vaccine mandate does not apply to all federal contractors and does not apply immediately to any existing contract.
On September 9, 2021, President Joe Biden issued Executive Order (EO) 14042, mandating COVID-19 vaccination of employees working on or in connection with covered federal government contracts and subcontracts, with limited exceptions. On September 24, 2021, the Safer Federal Workforce Task Force issued guidance that requires covered federal contractor employees to be fully vaccinated against COVID-19 by December 8, 2021, with limited exceptions, and addresses several other important aspects relating to implementation of EO 14042. While in some cases government-issued guidance is nonbinding, this guidance is intended to be binding.
Which Federal Contractors Are Covered by the Vaccine Mandate?
The vaccine mandate does not apply to all federal contractors and does not apply immediately to any existing contract. To trigger coverage under the mandate established by EO 14042, a contractor must enter into a federal government “contract or contract-like instrument” on or after November 14, 2021, that meets or exceeds the simplified acquisition threshold (currently $250,000) and contains the contract clause described in Section 2(a) of EO 14042.
As set forth in EO 14042, the vaccine mandate is applicable to the following types of federal government prime contracts and subcontracts (at any tier):
- Procurement contracts or contract-like instruments for services, construction or a leasehold interest in real property;
- Contract or contract-like instruments for services covered by the Service Contract Act;
- Contract or contract-like instruments for concessions; and
- Contract or contract-like instruments entered into with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents or the general public.
“Contract or contract-like instrument” is defined by reference to a broad definition set forth in the proposed rule regarding the federal contractor minimum wage recently issued by the U.S. Department of Labor, which includes, without limitation:
[A]wards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; exercised contract options; and bilateral contract modifications.
Exclusions from Coverage
As set forth in EO 14042, the vaccine mandate does not apply to:
- Contracts, contract-like instruments or agreements with Indian tribes under the Indian Self-Determination and Education Assistance Act;
- Contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold (currently $250,000);
- Employees who perform work outside the United States or its outlying areas, as those terms are defined in Section 2.101 of the Federal Acquisition Regulation; or
- Subcontracts solely for the provision of products.
Notably, the exclusion for subcontracts solely for the provision of products does not square with the scope of the mandate, which does not appear to include any contracts solely for the provision of goods. While it is unclear whether further guidance on this issue will be forthcoming, absent such guidance, it likely is a reasonable good faith assumption that contracts solely for the provision of products are not within the scope of EO 14042. The answer may turn on whether any contract clauses mandating vaccines are incorporated into prime contracts solely for the provision of products.
Contracts awarded (or modified, renewed or extended) on or after November 14, 2021, must contain the contract clause, which will be published by October 8, 2021. For contracts awarded between October 15 and November 14: (a) the contract must include the contract clause if the solicitation for the contract was issued on or after October 15; and (b) if the solicitation for the contract was issued prior to October 15, federal agencies are encouraged to include the contract clause in the contract.
Importantly, contracts awarded prior to October 15, 2021, where performance is ongoing, are not covered unless an option is exercised or an extension is made.
If a covered contract is awarded after December 8, 2021, the contractor must ensure compliance with the vaccine mandate and related requirements on the first date of the period of performance. Accordingly, even prior to coverage being triggered, contractors need to closely review bid solicitations so that if the contract is awarded, the contractor is prepared to take the steps needed to comply with the mandate.
What Workplaces and Employees Are Subject to the Vaccine Mandate?
Workplace and employee coverage is broad.
- Workplace coverage: The guidance defines “covered contractor workplace” as “a location controlled by a covered contractor at which any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract.”
- Employee coverage: The mandate applies to any full-time or part-time employee who: (a) works on a covered contract; (b) works in connection with a covered contract; and/or (c) works in the same location as an employee who works on or in connection with a covered contract (i.e., a covered contractor workplace). Work performed “in connection with” a covered contract extends coverage beyond those who are working directly on the contract to “[e]mployees who perform duties necessary to the performance of the covered contract, but who are not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review … .”
Thus, even if an employee does not perform any work on or in connection with a covered contract, the employee is subject to the vaccine mandate if they work at a location where any other employee performs work on or in connection with a covered contract.
Remote employees who work on a covered contract but never go to a federal worksite or into an office nonetheless are required to be fully vaccinated in accordance with the mandate (though the employee would not be subject to the other safety requirements applicable to covered contractor workplaces).
What Additional Safety Measures Must Federal Contractors Take?
In addition to mandating employee vaccination, covered contractors must also implement additional workplace COVID-19 safety measures, including:
- Implementation of masking and social distancing requirements: Covered contractors are required to implement and enforce masking and physical distancing requirements published by the CDC, including sector-specific CDC guidance applicable to specific settings (e.g., healthcare, transportation, correctional and detention facilities and schools). Because proper safety protocols (e.g., mask requirements for fully vaccinated employees) can differ based on the level of community transmission where a covered contractor workplace is located, the guidance requires covered contractors to check the CDC COVID-19 Data Tracker County View website for community transmission information in all areas where they have a covered contractor workplace at least weekly to determine proper workplace safety protocols.
- Appointment of COVID-19 safety person(s): Covered contractors must designate a person or persons to coordinate implementation of and compliance with the guidance at covered contractor workplaces, including the workplace safety protocols set forth in the guidance. Among other things, the designated person(s) is responsible for communicating required workplace safety protocols to covered contractor employees and “all other individuals likely to be present at covered contractor workplaces,” including by posting signage at such workplaces.
Are There Any Exceptions or Alternatives to the Vaccine Mandate?
The only exceptions to the vaccine mandate are for employees who are legally entitled to an accommodation, i.e., employees who are not vaccinated because of a disability or a sincerely held religious belief, practice or observance. However, the guidance does not provide direction to contractors regarding possible accommodations for such employees and states only that a covered contractor receiving a religious or disability accommodation request “should review and consider what, if any, accommodation it must offer.” The guidance specifically states that prior COVID-19 infection does not exempt an employee from the mandate.
Notably, the vaccine mandate does not provide any alternatives for employees who are not legally entitled to an accommodation, such as regular COVID-19 testing.
Fully Vaccinated Status and Proof of Vaccination
A person is considered fully vaccinated two weeks after receipt of the second dose of a two-dose series or two weeks after receipt of a single-dose vaccine. The guidance notes that “[t]here currently is no post-vaccination time limit on fully vaccinated status,” but if the CDC imposes such a limit, the guidance may be updated.
Covered contractors are required to review covered employees’ documentation to prove vaccination status. The guidance lists acceptable forms of documentation and permits covered contractors to accept digital copies of such documentation (e.g., a digital photograph, scanned image or PDF). Neither employee self-attestation of vaccination status nor a recent antibody test will suffice. Because documentation of vaccination status is a medical record, such records should be maintained confidentially in accordance with the requirements of the Americans with Disabilities Act and applicable state or local law.
Covered contractors are not required to provide vaccination to covered employees (on-site or otherwise), but are encouraged to make employees aware of convenient opportunities to be vaccinated.
What This Means for Employers
Companies that contract with the federal government, either as a prime contractor or a subcontractor at any tier, should carefully review their existing contracts to determine whether they may be subject to the vaccine mandate, with a particular eye toward the possibility for extensions and renewals. Contractors also should carefully review any bid solicitations and any new awards to determine whether the vaccine mandate will apply. In anticipation of the potential for coverage to be triggered, federal contractors also should carefully review EO 14042 and the guidance and work with counsel to ensure that the contractors are in a position to comply with the vaccine mandate. Finally, federal contractors should remember that even if not covered by the guidance, any of their employees performing work at a federal government location are subject to mandatory vaccination and other safety requirements effective November 22, 2021.
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Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
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 The guidance also provides that certain clinical trial participants who have received the full series of an “active” COVID-19 vaccine candidate may be considered fully vaccinated, and notes that the Novavax COVID-19 vaccine currently meets the criteria.
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