Consistent with the Order, a FAR clause will implement the Guidance on new contracts awarded on or after November 14. Between October 15 and November 14, federal agencies must include the clause in solicitations. With respect to contracts awarded prior to October 15, the FAR clause will be incorporated when a contract is either extended or an option exercised.3
Workplace Safety Protocols
As predicted in our September 17 Legal Update,4 the Guidance mirrors the safety protocols implemented at federal worksites. The safety protocols include mandatory vaccinations for contractors, masking and physical distancing requirements, and a requirement for contractors to designate an employee(s) to coordinate COVID-19 workplace safety protocols. In addition, contractors must follow any updated Guidance approved by the director of the Office of Management and Budget.5
No later than December 8, the Guidance requires vaccinations for “covered federal contractor and subcontractor employees [defined infra].”6 The Guidance further requires covered contractors to obtain proof of vaccination from their covered employees. The Guidance also provides a list of acceptable documents (such as the CDC vaccination card) for covered contractor employees to show such proof of vaccination. Notably, the Guidance does not provide for a weekly testing option in lieu of vaccination; this option existed previously for federal employees and onsite contractors.
The Guidance’s Frequently Asked Questions (“FAQ”) section makes clear that covered contractor employees working remotely must still be vaccinated because these remote workers are still “covered contractor employees,” notwithstanding that the remote covered contractor employee “never works at either a covered contractor workplace or Federal workplace during the performance of the contract.”7 However, because a private residence is not a “covered workplace,” other safety protocols such as masking and social distancing are not required.
Exceptions to the vaccination requirement are limited to “a d2isability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance.”8 If such an exception applies, then a contractor “should review and consider what, if any, accommodation it must offer.”
If a federal agency has “an urgent, mission-critical need,” the Guidance allows for the agency to approve exceptions to the vaccination requirement. However, the “covered contractor must ensure these covered contractor employees are fully vaccinated within 60 days of beginning work,” and these employees must follow the masking and physical distancing requirements for not fully vaccinated people.9
Masking and Physical Distancing Requirements
As noted in our previous Legal Update, these safety protocols are consistent with CDC guidance.
- In areas of high or substantial transmission, all “covered contractor employees” will be required to wear a mask, and in areas of low transmission, vaccinated people will not be required to wear a mask.
- With respect to physical distancing, fully vaccinated people do not need to physically distance regardless of the level of transmission, whereas not fully vaccinated people must both wear masks regardless of the transmission level and must physically distance to the extent practical, regardless of the transmission level.
- The Task Force Guidance requires covered contractors, on at least a weekly basis, to check the CDC’s website for COVID-19 transmission rates in a given area to determine proper safety protocols depending on the community transmission level.
Moreover, consistent with CDC guidelines, covered contractors may grant exceptions to masking and physical distancing requirements, which include where an individual is alone and in an enclosed space; eating and drinking for a limited time (but maintaining physical distancing); high intensity activities; or any activity “for which wearing a mask would create a risk to workplace health, safety, or job duty as determined by a workplace risk assessment.” A covered contractor must approve these exceptions in writing.10
In addition, the Guidance recognizes exceptions for those covered employees entitled to an accommodation because of “a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance.”11
The Guidance does not specifically require covered contractors to determine the actual vaccination status of visitors to the contractor’s workplace. Instead, the Guidance notes that contractors should post signage about safety protocols for fully vaccinated and not fully vaccinated individuals and instruct individuals to follow the appropriate protocols.
Designated Covered Contractor Employee to Coordinate COVID-19 Safety Protocols
Contractors must designate at least one individual to coordinate and implement COVID-19 workplace safety protocols at “covered work sites.”12 It remains to be seen how much of a burden in time, cost and manpower these coordination and implementation efforts will create for federal contractors.
Definitions to the Guidance’s Key Terms
Perhaps the most helpful part of the Guidance to covered contractors is the section providing definitions to key terms.
Contractor or subcontractor workplace location – means a location where covered contract employees work, including a covered contractor workplace or federal workplace.
This definition is expansive and includes a covered contractor’s campus of multiple buildings or sites even if a covered contractor employee performs their duties only at one building “unless a covered contractor can 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.”13
Covered contract – means any contract or contract-like instrument that includes the clause described in Section 2(a) of the Order.
The Order exempts (i) grants, (ii) contracts or agreements with Indian Tribes, (iii) contracts and subcontracts below the simplified acquisition threshold ($250,000), (iv) subcontracts solely for the provision of products and (v) employees who work outside the United States or its outlying areas.
However, the Guidance appears to also exempt prime contracts for the provision of products from the Order’s applicability.14 It is not clear if the Guidance intended to add an exemption that the Order did not enumerate. Moreover, the Order and the Guidance do not define “product,” but under the FAR, the term “products” has the same meaning as “supplies.” The FAR defines “supplies” as:[A]ll property except land or interest in land. It includes (but is not limited to) public works, buildings, and facilities; ships, floating equipment, and vessels of every character, type, and description, together with parts and accessories; aircraft and aircraft parts, accessories, and equipment; machine tools; and the alteration or installation of any of the foregoing.15
Additionally, the Guidance, like the Order, strongly encourages federal agencies “to incorporate a clause requiring compliance with this Guidance into contracts that are not covered or directly addressed by the Order” due to an exemption.
Covered contractor – means a prime contractor or subcontractor at any tier who is party to a covered contract.
Covered contractor employee – 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 includes employees of covered contractors who are not themselves working on or in connection with a covered contract.
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. A covered contractor workplace does not include a covered contractor employee’s residence.
The Guidance’s FAQ section clarifies that this definition is expansive. It provides that even if “a covered contractor employee performs their duties in or at only one building, site, or facility on a campus,” the whole campus is a covered contractor workplace subject to the Guidance, unless “the covered contractor can 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 performance of the covered contract.16
Fully vaccinated– means two weeks after the last shot of the particular vaccine regimen. If it is a one-shot regimen, then this means two weeks after the date of the shot. If a two-dose regimen, then two weeks after the second shot. However, this definition is subject to change based on the CDC’s determination.
“In connection with” – The Guidance applies to not only those covered contractor employees working “on” a covered contract but also those individuals working “in connection with,” which means “[e]mployees who perform duties necessary to the performance of the covered contract, but who are not directly engaged in performing the work called for by the covered contract, such as human resources, billing, and legal review.”
More Clarification Needed
The FAR Clause. Notably absent from the Guidance are the consequences for a covered contractor’s failure to comply with the Guidance. In addition, the FAR clause enforcing a contractor’s compliance with the Guidance has yet to be published. (According to the Order, the FAR Council will publish the model clause by October 8.) Accordingly, it is still unclear how the government will enforce a contractor’s compliance (e.g., through a separate certification of compliance). As mentioned in our previous Legal Update, the consequences for noncompliance may include the government terminating a contract for default and/or debarment. In addition, given the breadth of the Order, contractors must be concerned with compliance scrutiny and with potential false certifications of compliance and exposure to False Claims Act liability.
1 See previous Legal Update on this topic, Executive Orders Place US Federal Contractors and Employers at Forefront of New COVID Mandates (Sep. 17, 2021), available at https://www.mayerbrown.com/en/perspectives-events/publications/2021/09/executive-orders-place-us-federal-contractors-and-employers-at-forefront-of-new-covid-mandates.
2 Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Sep. 24, 2021), available at https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20210922.pdf.
3 Id. at 11-12.
5 Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, 12 (Sep. 24, 2021), available at https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20210922.pdf.
6 Id. at 5.
7 Id. at 11.
8 Id. at 5.
9 Id. at 6.
10 Id. at 7.
11 Id. at 7.
12 Id. at 7-8.
13 Id. at 10.
14 Id. at 5.
15 FAR § 2.101.
16 Id. at 11.