Breaking Down the New COVID-19 Safety Protocol Guidance for Federal Contractors and Subcontractors

The Biden Administration, via its Safer Federal Workforce Task Force (the “Task Force”), has now provided the guidance with which federal contractor and subcontractors must comply in connection with their contracts and contract-like instruments with the Federal government.  In short, the guidance interprets the order to cover many federal contractors and provides a short timeline to ensure employee vaccination and implement other safety measures. 

Contractors should be mindful that December 8, 2021 is the deadline for covered employees of covered federal contractors to be fully vaccinated.  Given the CDC’s definition of “fully vaccinated” (as described further below), covered contractor employers must work quickly to begin vaccine regimens (by no later than early November).

Below we address various topics discussed in the guidance, including who it covers (including certain groups who may have mistakenly thought they would be exempt from its vaccination requirements), the technical and administrative requirements that must be satisfied, and other issues contractors should consider when coming into compliance. 

Biden’s Recent Federal Contractor Executive Order Directed the Task Force to Issue Guidance.

As a brief refresher, Biden’s Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors), directed executive departments and agencies (and certain other independent establishments) to ensure that contracts and contract-like instruments include a clause that contractors and any subcontractors “will, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force . . . ” and covered four types of contracts (discussed further below).  The order also instructed this Task Force to issue the guidance, including to “provide definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions to Task Force Guidance that apply to contractor and subcontractor workplace locations and individuals in those locations working on or in connection with a Federal Government contract or contract-like instrument . . . .” 

The Task Force has now issued that guidance, which has three main components to its workplace safety protocols:

1. Vaccination of covered contractor employees;
2. Masking and physical distancing requirements while in a covered contractor workplace; and
3. Designation of a person or persons to coordinate COVID-19 workplace safety efforts.

What is a “Contract or Contract-Like Instrument” and who is a “Covered Contractor”?

Under the guidance, “covered contractors” are any prime contractor or subcontractor at any tier who is party to a “covered contract.”  Covered contracts are those that qualify as a “contract or contract-like instrument” and fall under one of the four enumerated categories described in Section 5(a) of the Executive Order.

The guidance describes the term “contract or contract-like instrument” as having the same meaning as set forth in the Department of Labor’s proposed rule Increasing the Minimum Wage for Federal Contractors from July 2021.  That proposed rule would define it as “an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.”  It further describes these terms to include “a mutually binding legal relationship obligating one party to furnish services (including construction) and another party to pay for them” as well as “all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing.”  The terms “contract or contract-like instrument” also include “contracts covered by the Service Contract Act, contracts covered by the Davis-Bacon Act, concessions contracts not otherwise subject to the Service Contract Act, and contracts in connection with Federal property or land and related to offering services for Federal employees, their dependents, or the general public.”

Even if the agreement qualifies as a “contract or contract like instrument,” is must also qualify as one of four specific types of contracts:

1. it is a procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property;
2. it is a contract or contract-like instrument for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
3. it is a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); or
4. it is a contract or contract-like instrument 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.

There are certain exception though to the above four categories:

1. grants;
2. contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93-638), as amended;
3. contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold, as that term is defined in section 2.101 of the Federal Acquisition Regulation (currently $250,000);
4. 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; and
5. subcontracts solely for the provision of products.

In light of the above, for any organization that has a relationship with a federal agency, now is the time to verify your status as a federal contractor or subcontractor.  It would be a mistake to assume that such status does not apply because of the absence of a written contract or agreement that formally designates such status. 

We also note, importantly, that even where certain businesses or contracts may not be covered under the Executive Order, the guidance “strongly encourages” agencies to “to incorporate a clause requiring compliance with this Guidance into contracts that are not covered or directly addressed by the order, including contracts under the simplified acquisition threshold or for the manufacturing of products.  Accordingly, the ambit of these new rules may be even greater than Executive Order and the associated guidance dictates.  

Covered Contractor Employees Must be Fully Vaccinated by December 8, 2021. 

Under the guidance, covered contractor employee must be fully vaccinated by December 8, 2021, except in the limited circumstance where the employee is entitled to an accommodation for religious or medical reasons.  After that date, the guidance explains, “all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.”

As all “covered contract employees” must be vaccinated, it’s worth examining the breadth and limitations of that term.  “Covered contractor employees” under the guidance means “any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace.”  This definition is expansive, and includes “employees of covered contractors who are not themselves working on or in connection with a covered contract” who are working at a covered contractor workplace. 

Further, contrary to initial indications, the requirements apply to all U.S. employees of the federal contractor working on or in connection with a covered contract irrespective of whether the employee works from the physical plant of the employer or works off-site.  This means that individuals who telework for covered contractors and work on or in connection with a covered contract are also covered, though their residence does not become a covered contractor workplace for purposes of the workplace safety requirements discussed below.

Nonetheless, an FAQ portion of the guidance provides some limitations here where covered and non-covered employees are completely segregated.  The vaccination requirement will not extend to an employee not working on or in connection with a covered contract where: (i) the employee performs his or her duties in or at only one building, site, or facility on a campus controlled by a covered contractor with multiple buildings, sites, or facilities; and (ii) the covered contractor affirmatively determines that there will be no interactions between the employee and contractor employees in those locations during the period of performance on a covered contract, including interactions through use of common areas such as lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.

In alignment with CDC guidance, employees are considered fully vaccinated for COVID-19 two weeks after they have received the second dose of a two-dose vaccination series or two weeks after receiving a single-dose vaccine.  While covered contractors are not required to provide on-site vaccination to employees, they should provide information on convenient opportunities for vaccinations.  The guidance leaves open the possibility of future post-vaccination time limits regarding fully vaccinated status (for example, if booster shots become an expectation), though none are currently in place.

Covered contractors are to evaluate accommodations relating to a disability or a sincerely-held religious belief, practice or observance.  In these circumstances, the covered contractor should review and consider what, if any, accommodation it must offer.  The covered contractor is responsible for the consideration and disposition of requests for accommodations, regardless of the location that the employee performs services.

All covered contractors are required to review the documentation of covered contractor employees to prove vaccination status, which can be shown by immunization records of a hospital or pharmacy, COVID-19 Vaccination Record Cards, medical records documenting vaccination, immunization records from a public health or state immunization system, or other official documentation verifying vaccination containing information on the vaccine, date of administration, and the name of the health care professional/clinic site administering the vaccine.  Electronic, digital or scanned copies of such records are sufficient for proof.  The guidance makes clear that employee “attestations” of vaccination are insufficient as are proof of prior infections, including via an antibody test.

Additionally, while not required, the guidance encourages covered contractors to incorporate these vaccination requirements into their own contacts with “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 those contracts and agreements related to the provision of food services, onsite security, or groundskeeping services at covered contractor workplaces.”

Masking and Physical Distancing Requirements Apply While in Covered Contractor Workplaces.

The guidance requires covered contractors to ensure all individuals, including employees and visitors, comply with CDC guidance with respect to masking and physical distancing at a “covered contractor workplace.” 

Under the guidance, a “covered contractor workplace” means 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.” It does not include a covered contractor employee’s residence (as noted above, where a teleworking employee may be performing services related to the contract).  This definition is expansive, but – as noted above – the guidance provides slight flexibility on which facilities of the covered contractor are subject to the workplace safety protocols depending on whether the covered contractor can affirmatively show that none of the employees at a certain building/floor/facility will come in contact with a covered contract employee during the performance of a covered contract.  These exceptions should be considered limited as it also requires no interactions among the two employee groups in common areas such as lobbies, security clearance areas, elevators, stairwells, dining areas, meeting rooms, kitchens and parking garages.

The guidance states that in areas of high or substantial community transmission, all persons (including those fully vaccinated) must wear a mask in most indoor settings.  As of this writing, 97% of U.S. counties meet the “high” or “substantial” transmission metric.  In areas of low or moderate community transmission, however, fully vaccinated people are not required to wear a mask, though individuals who are not fully vaccinated must continue to wear one.  Persons who are not fully vaccinated must wear a mask in all indoor locations and in outdoor locations which are crowded or involve sustained close contact with other individuals who are not fully vaccinated.  Drops in transmissions rates must occur for at least two consecutive weeks before a covered contractor can loosen masking requirements for fully vaccinated employees. 

The guidance does set forth limited exceptions to the mask wearing requirement: where the employee needs a disability or religious-based accommodation or for abbreviated periods of drinking or eating with appropriate distancing or when a person is alone in an office with floor to ceiling walls and a closed door.  Other exceptions may be permitted, including in circumstances in which wearing a mask would create a workplace health and safety concern as determined by a workplace risk assessment or the employee is unable to wear a mask because of difficulty breathing. 

The guidance does not require physical distancing for vaccinated employees, but does for unvaccinated employees – “at all times, including in offices, conference rooms, and all other communal and work spaces.”

Many covered contractors may be surprised to learn that their masking and physical distancing obligations extends to visitors as well.  The guidance notes that covered contractors should “post signage at entrances to covered contractor workplaces providing information on safety protocols for fully vaccinated and not fully vaccinated individuals” and should “instruct individuals to follow the appropriate workplace safety protocols while at the covered contractor workplace.”

Covered Contractors Must Designate Personnel to Coordinate Compliance with the Guidance.

This designee or these designees could be, but does/do not have to be, the same individual(s) that is responsible for implementing any COVID-19 workplace safety protocols required by Federal, state or local laws. 

The responsibilities of the designated individual(s) include communicating required workplace safety protocols and policies via email, websites, memos, flyers, and other means.  They must also post signage at the workplace that sets forth the requirements and workplace safety protocols in a readily understandable manner.  A key requirement of this job is that this designee must also ensure that the covered contractor complies with the requirements regarding proper vaccination documentation for employees (which we discussed above).

The Requirements Go Into Effect Soon.

The Executive Order is already in effect and it applies to covered “new contracts; new contract-like instruments; new solicitations for contracts or contract-like instruments; extensions or renewals of existing contracts or contract-like instruments; and exercises of options on existing contracts or contract-like instruments . . . ."  The safety clauses must be reflected in covered contracts by federal agencies as follows:

• For contracts awarded before October 15 where performance remains ongoing, the clause must be incorporated at the point at which the contract is extended or where an option is exercised;
• For new contracts, the clause must be incorporated on or after November 14.
• Between October 15 and November 14, agencies must include the clause in the solicitation and “are encouraged to include the clause in contracts awarded during this time period but are not required to do so unless the solicitation for such contract was issued on or after October 15.”

The Guidance is a Living, Breathing Document.

As a partial acknowledgement that health and safety guidance will continue to develop with respect to COVID-19, covered contractors are required to monitor the CDC COVID-19 Data Tracker County View website for community transmission information.  Depending on the applicable levels of transmission at worksites, it may be required to implement additional health and safety protocols.  Further, the guidance FAQ section notes that, in the event the Task Force updates its guidance and/or adds new requirements, those new/supplemental requirements will apply to existing contracts for the duration of the contract.

Parting Thoughts

• Since the timeline for compliance with the guidance is fast-tracked, it will be imperative for companies to consult with counsel to verify their standing as a covered federal contractor and, if covered, to quickly position themselves to properly implement the administrative and operational requirements. 
• Covered contractor employers should come to terms with the fact the guidance is very expansive – covering most of their workforce, including with respect its vaccination requirements, and most parts of their workplace – even when their contractual relationship with the Federal government may be quite limited..  Employers should maintain a close eye on additional guidance that should be forthcoming further defining the scope of covered contractors and covered employees.
• Covered contractor employers who may also be covered under OSHA-related workplace safety standards, including the forthcoming larger employer vaccination rules, must still comply with the Federal contractor guidance.  That means that covered contractor employers cannot utilize a “test-out” option for covered employees that will be included in OSHA’s forthcoming rules.  Similarly, employers in states or locales that have attempted to limit safety protocol restrictions would still need to comply with this guidance.
• Please note the qualifying as a covered contractor under this Executive Order is completely distinct and separate from qualifying as one under Executive Order 11246 – meaning that an employer may otherwise qualify as a federal contractor subject to OFCCP jurisdiction subject to OFCCP reporting requirements, including adoption of certain EEO policies, submission of EEO-1 reports and the maintenance of applicable affirmative action programs.

Mintz’s Employment, Labor & Benefits team is available to assist affected businesses with any questions and concerns.

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