SUMMARY: On Friday, September 24, 2021, the Safer Federal Workforce Task Force released new guidance (“Guidance”) on COVID-19 workplace protocols for Federal contractors and subcontractors. This guidance is issued in connection with President Biden’s Executive Order (“EO”) announced on September 9, 2021, implementing a six-part “Action Plan,” of which a critical component is to mandate COVID vaccinations for all federal workers, including contractors and subcontractors (with limited exceptions for religious beliefs or medical conditions) and to adhere to various other safety protocols in efforts to reduce the transmission of COVID-19.
As a recap, under the EO, all executive departments and agencies were to ensure that all “covered contracts” (as the term is defined below): (i) comply with all guidance for prime/sub workplace locations published by the Safety Federal Workforce Taskforce (“SFTF”); of which (ii) all SFTF guidance shall apply to any workplace locations (as specified by SFTF) in which an individual is working on or in connection with an applicable Federal Government contract.
The much-anticipated Guidance released on Friday, September 24, 2021 provides further clarity on what will be required of Federal contractors and subcontractors going forward in an effort to reduce the transmission of COVID-19.
In summary, the Guidance sets forth three requirements:
1) Full vaccination of all “covered contractor employees,” except in limited circumstances where an employee is legally entitled to an accommodation;
2) Masking and physical distancing of “covered contractor employees” and visitors while in a “covered contractor workplace;” and
3) Designation of a COVID-19 Safety Coordinator(s) to coordinate COVID-19 workplace safety efforts.
CLARIFICATION AS TO WHICH CONTRACTS ARE COVERED UNDER THE EO:
As indicated in the EO, the EO applies to “covered contracts” defined as:
(1) any new contract; new contract-like instrument; new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument, if:
a. it is a procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property;
b. it is a contract or contract-like instrument for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
c. 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
d. 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.
The EO does not apply to:
(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;
(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; or
(5) subcontracts solely for the provision of products.
However, the Guidance expands and clarifies (contrary to popular speculation) that a “contract and contract-like instrument” should be interpreted broadly and alludes that such terms are not just limited to service contracts subject to the Service Contract Act and Davis-Bacon Act. Therefore, Federal contractors should expect all service contracts not subject to the above stated exceptions to be subject to the EO. The Guidance goes on to clarify that “covered contracts” shall also encompass more than bilateral instruments, such as awards, notices of awards, job orders or task letters issued under basic ordering agreements, letter contracts, orders, exercised contract options and bilateral contract modifications.
Furthermore, the Guidance strongly encourages Federal agencies to include a clause requiring compliance with the Guidance in any contract, including those not expressly included in the EO. Therefore, it is entirely possible that contracts that are excepted from the EO mandate such as grants may include a clause requiring compliance with the Guidance.
VACCINATION:
The vaccination requirement in the Guidance applies to all covered contractor employees. A “covered contractor employee” is defined as any full-time or part-time employee of a covered contractor that is either (1) working on or in connection with a covered contract, or (2) working at a “covered contractor workplace,” which includes employees who are not themselves working on or in connection with a covered contract. 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,” but specifically excludes an employee’s residence. Employees who perform the specific work demanded by the covered contract are “working on” the contract. Employees who are not working on the contract but are performing “duties necessary to the performance of the covered contract,” are considered to be “working in connection” with the contract (human resources, billing, and legal review, etc.).
The Guidance goes on to clarify that covered contractor employees who work on or in connection with the covered contract from their residence must be vaccinated. However, a personal residence is not considered a “covered contractor workplace,” so masking and physical distancing requirements do not apply to such workers.
The deadline for covered contractor employees to be fully vaccinated will depend on when the Federal contractor has a covered contract. If a Federal contractor has a covered contract on or before the October 15, 2021 effective date of the contract clause, covered contractor employees must be fully vaccinated by 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.”
Employees who cannot be vaccinated because of a disability, medical issue or a sincerely held religious belief should be reasonably accommodate consistent with guidance from the EEOC. The same exception applies for the masking requirement.
Federal contractors must require employees to provide proof (digital copies, pictures or scanned images are acceptable) of their vaccination status by providing one of the following:
(1) Record of immunization from a health care provider or pharmacy.
(2) COVID-19 Vaccination Record Card.
(3) Medical records documenting the vaccination.
(4) Immunization records from a public health or state immunization information system.
(5) Any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of the health care professional or clinic site administering the vaccine.
MASKING:
Masking requirements depend on the individual’s vaccination status and the level of community transmission in the area of the covered contractor workplace location.
Fully vaccinated individuals: (1) must wear masks in areas of high or substantial community transmission, except for when alone in an office or when eating and drinking while physically distanced; and (2) do not need to wear masks in areas of low or moderate community transmission.
Individuals who are not fully vaccinated must wear masks regardless of the level of community transmission when they are (1) indoors; and (2) outdoors in sustained close contact with others who are not fully vaccinated.
Employees do not have to wear masks (or engage in social distancing) when teleworking, but they do have to be vaccinated.
Please note that The Centers for Disease Control and Prevention provides information on the level of community transmission at the COVID-19 Data Tracker County View, and Federal contractors must check this site at least weekly and practice the appropriate safety measures based on this data. Before transitioning to measures appropriate for low or moderate transmission levels, the transmission level must remain at the lower threshold for at least two consecutive weeks.
When masks are necessary, the Guidance lists the following types of acceptable masks:
(1) Disposable masks.
(2) Masks that fit properly (snugly around the nose and chin with no large gaps around the sides of the face).
(3) Masks made with breathable fabric (such as cotton).
(4) Masks made with tightly woven fabric that does not let light pass through when held up to a light.
(5) Masks with more than one layer.
(6) Masks with inner filter pockets, and filtering facepiece respirators that are approved by the National Institute for Occupational Safety and Health or consistent with international standards.
PHYSICAL DISTANCING:
Fully vaccinated individuals do not need to physically distance regardless of the level of transmission in the area. Individuals who are not fully vaccinated should, “to the extent practicable,” stay at least six feet from other workers at all times, including in offices, conference rooms and all other communal and workspaces.
DESIGNATION OF COVID-19 SAFETY COORDINATOR:
The COVID-19 Safety Coordinator must:
(1) Coordinate implementation of and compliance with the guidance and workplace safety protocols at covered contractor workplaces.
(2) Ensure that information on required COVID-19 workplace safety protocols is provided to covered contractor employees and all other individuals likely to be present at covered contractor workplaces by:
a. communicating the required workplace safety protocols and related policies by email, websites, memoranda, flyers, or other means,
b. posting signage at covered contractor workplaces that explain the requirements and workplace safety protocols in a readily understandable manner, and
c. communicating the COVID-19 workplace safety protocols and requirements related to masking and physical distancing to visitors and all other individuals present at covered contractor workplaces.
(3) Ensure that covered contractor employees provide proper vaccination documentation.
Federal contractors may designate one or more persons to be COVID-19 Safety Coordinators, and the designees “may be the same individual(s) responsible for implementing any additional COVID-19 workplace safety protocols required by local, State, or Federal law, and their responsibilities to coordinate COVID-19 workplace safety protocols may comprise some or all of their regular duties.”
For further information regarding this white paper, please contact: Mariel Estigarribia at mie@fellplaw.com, or Jim Heller at jwh@fellplaw.com.