On September 9, 2021, President Biden signed legislation which mandated that federal government contractors, including subcontractors, provide adequate COVID-19 safeguards to their workers performing on or in connection with a federal government contract or contract-like instrument.
On September 24, 2021, the Safer Federal Workforce Task Force issued Guidance for Federal Contractors and Subcontractors to provide more details about the mandate to all executive departments and agencies, including independent establishments subject to the Federal Property and Administrative Services Act. The Guidance states that, “these workplace safety protocols will apply to all covered contractor employees, including contractor or subcontractor employees in covered contractor workplaces who are not working on a Federal Government contract or contract-like instrument.”
There are three key required workplace safety protocols outlined in the Task Force’s Guidance:
- COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;
- Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces; and
- Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.
Below is a summary of the Guidance’s information on these protocols.
COVID-19 Vaccine Mandate
Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. Covered contractor employees must be fully vaccinated no later than December 8, 2021. After that date, 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.
Covered contractors also may be required to provide accommodations to covered employees who are not vaccinated because of a disability, sincerely held religious belief, practice, or observance. Such requests should be treated as requests for a disability accommodation. There is similar language for requirements to wear a mask.
For urgent, mission-critical needs, the agency head may approve an exception but, if there is an exception, the covered employee must be fully vaccinated within 60 days of beginning work and the employee shall comply with masking and physical distancing requirements.
Contractors are required to review proof of vaccination status.
Covered contractors are strongly encouraged 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.
Masking and Physical Distancing Mandate
Covered contractors must ensure that all individuals, including covered contractor employees and visitors, comply with published CDC guidance for masking and physical distancing at a covered contractor workplace.
In areas of high or substantial community transmission, fully vaccinated people must wear a mask in indoor settings, except for limited exceptions discussed in this Guidance. In areas of low or moderate community transmission, fully vaccinated people do not need to wear a mask. Fully vaccinated individuals do not need to physically distance regardless of the level of transmission in the area.
Individuals who are not fully vaccinated must wear a mask indoors and in certain outdoor settings regardless of the level of community transmission in the area. To the extent practicable, individuals who are not fully vaccinated should maintain a distance of at least six feet from others at all times, including in offices, conference rooms, and all other communal workspaces.
Covered contractors must require individuals in covered contractor workplaces who are required to wear a mask to:
- Wear appropriate masks consistently and correctly (over mouth and nose).
- Wear appropriate masks in any common areas or shared workspaces (including open floorplan office space, cubicle embankments, and conference rooms).
Individuals who are not fully vaccinated must wear a mask in crowded outdoor settings or during outdoor activities that involve sustained close contact with other people who are not fully vaccinated, consistent with CDC guidance. Please note, there are exceptions listed in the guidance when an employee is not required to social distance or wear a mask, and safety protocols may need changed weekly depending on the CDC COVID Data Tracker website.
Section 6 of the order lays out a phase-in of the requirements for covered contracts as follows:
- Contracts awarded prior to October 15 where performance is ongoing. The requirements must be incorporated at the point at which an option is exercised or an extension is made.
- New contracts. The requirements must be incorporated into contracts awarded 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.
These protocols will be updated by the Task Force based on any proposed changes to the CDC’s COVID-19 guidance and as warranted by the state of the pandemic as well as public health conditions.
To provide additional clarification, the following terms are defined in the Guidance: contract and contact-like instrument, contractor or subcontractor workplace location, covered contract, covered contractor, covered contractor employee (note, this definition includes employees who are not themselves working on or in connection with a covered contract), covered contractor workplace, federal workplace, fully vaccinated, and mask.
As you can see, compliance with these new mandates will add to your costs. Contractors will need to evaluate whether contracts or reimbursement rates need to be modified to include such unexpected costs. We expect to see additional guidance as more questions are posed, so we would encourage contractors to periodically check the Guidance for changes and/or additional questions and answers. You can access the full text of the Guidance here.
David E. Shaffer can be reached at Email or 215.441.4600.
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