It's a Mandate: Task Force Issues COVID-19 Vaccine Guidance for Government Contractors

As required by President Joe Biden's Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors on Sept. 9, 2021, the Safer Federal Workforce Task Force (the Task Force) issued its COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (the Safety Guidance).

As expected, the main thrust of the Safety Guidance is a broad-based vaccine mandate for federal contractor workers. (See Holland & Knight's previous alert, "President Biden Mandates COVID-19 Safety Measures for Government Contractors," Sept. 10, 2021.) The mandate applies to individuals working on and "in connection with" covered contracts. In many instances, the mandate also applies to individuals working at a federal contractor's workplace, even if the individuals do not themselves work on or "in connection with" a federal contract.

The Federal Acquisition Regulatory Council (FARC) has been tasked with drafting a rule by Oct. 8, 2021, and agencies will be requested to utilize the rule as class deviations so the rule can expeditiously be placed into contracts when permitted by the rule.

Covered contractor employees will be required to be fully vaccinated by Dec. 8, 2021, or whenever performance on a covered contract starts, whichever is later. Covered contractors are required to review a copy of each employee's vaccination records (digital versions are acceptable) to verify vaccination status, which is a departure from the prior guidance allowing employee attestation without verification. The Safety Guidance specifies that covered contractors may be required to provide accommodations for employees who cannot comply with the vaccine requirement due to a disability or other medical conditions, or due to sincerely held religious beliefs, when there is a legal entitlement to such an accommodation. Covered contractors are responsible for considering and dispositioning such accommodation requests, and the Safety Guidance offers no examples of potential reasonable accommodations.

Types of Contracts Impacted

The definition of "contract or contract-like instrument" is adopted from the U.S. Department of Labor's (DOL) proposed rule, "Increasing the Minimum Wage for Federal Contractors," issued on July 22, 2021, and includes "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." Like the minimum wage proposed guidance, the Safety Guidance lists contracts covered by the McNamara–O'Hara Service Contract Act (SCA), Davis-Bacon Act, concessions contracts and contracts in connection with federal property or land as examples of covered contracts. However, the Safety Guidance makes clear that this list is not exhaustive.

While contracts below the simplified acquisition threshold (currently $250,000) and contracts and subcontracts for products are not specifically included in the Safety Guidance, the Task Force is "strongly encourag[ing]" agencies to place the clause in contracts for products. Given this direction, contractors selling products to the federal government should anticipate that agencies will elect to include the vaccine mandate clause in their contracts.

While it is not entirely clear which types of contracts will be impacted by the new vaccine requirements (aside from the four types specifically mentioned in the Safety Guidance), contractors should expect that agencies will take a broad-based view and include the requirement in all contracts except for ones specifically excluded by President Biden's Executive Order.

Individuals Impacted

It is clear from the broad language in the Safety Guidance that the Task Force intends to mandate the vaccine for as many individuals as possible, including:

• all covered contractor employees working on or in connection with a covered contract, regardless of where the employee works, whether the individual works at a contractor's worksite or from any other locations, including the individual's private residence
• all covered contractor employees, including those who do not work on or in connection with a covered contract, who work at a contractor's worksite where there are other employees who work on or in connection with a covered contract and who are 1) physically present at that worksite or 2) who may visit that worksite during the period of performance for a covered contract

Covered contractor employees who work "in connection with" covered contracts are defined broadly under the Safety Guidance to include employees who perform duties "necessary to the performance of the covered contract," including employees typically deemed as overhead such as human resources, billing and legal review. This is a notable change from previous regulations, which provided that workers must spend at least 20 percent of their time supporting contracts to be covered by the "in connection with" definition.

It is difficult to imagine scenarios where a covered contractor would not have all of their employees impacted by the mandate unless they can successfully demonstrate that an employee neither works on nor in connection with a covered contract and works in a location where no covered contractor employees will ever be physically present in that same location.

Other Requirements

While the vaccine mandate is an obvious focus, the Safety Guidance also sets forth other safety requirements for covered contractor employees who work in a location controlled by the contractor at which any employees who work on or in connection with a covered contract are likely to be physically present. In addition to following all guidance issued by the Centers for Disease Control and Prevention (CDC), the Safety Guidance requires:

• masking indoors of unvaccinated individuals, regardless of the level of community transmission
• masking indoors of vaccinated individuals when there is high or substantial community transmission
• physical distancing for unvaccinated individuals when practicable, regardless of the level of community transmission, and fully vaccinated individuals do not need to physically distance

The Safety Guidance contains explanations for various scenarios (indoor versus outdoor and vaccinated versus unvaccinated) and other requirements that contractors should consult when developing policies. The Safety Guidance also requires covered contractors to designate one or more company representatives to coordinate the covered contractor's COVID-19 workplace safety efforts at covered worksites.

What Should Contractors Do?

Assuming a contractor has a covered contract, they should:

• develop and implement clear employee policies regarding vaccination, masking and physical distancing
• implement and/or refine administrative and operational protocols for:
  • verifying employee vaccination status
  • evaluating employee accommodation requests in compliance with applicable law, including the Americans with Disabilities Act (ADA) and Title VII, and identifying and implementing reasonable accommodations as appropriate
  • monitoring and enforcing masking and physical distancing requirements, as well as other COVID-19 safety protocols
• designate an individual or team of individuals to coordinate implementation and monitor compliance for each worksite
• review modifications to contracts carefully, including the exercise of option years or mass modifications on Federal Supply Schedule (FSS) contracts for the vaccine mandate clause
• flow down any clauses to the supply chain, including lower-tier subcontractors, as required by the clause
• track costs associated with implementation of the vaccine mandate and other requirements to requesting an equitable adjustment or reimbursement
• monitor additional related federal, state and local legal developments, including the anticipated COVID-19 Prevention Emergency Temporary Standard that President Biden has directed the Occupational Safety and Health Administration (OSHA) to implement in the near term

Implementation Timing

The executive order and Safety Guidance set forth the implementation timing:

• the Federal Acquisition Regulatory (FAR) Council will develop a clause by Oct. 8, 2021, and ask agencies to issue class deviations consistent with the clause
• for contracts awarded between Oct. 15, 2021 and Nov. 14, 2021, agencies are encouraged to put the clause in contracts awarded and required to place it in solicitations
• for contracts awarded after Nov. 14, 2021, the vaccine mandate is required to be placed in contracts
• covered contractor employees working on or in connection with a covered contract must be fully vaccinated by Dec. 8, 2021, or the first day of performance of a covered contract

Holland & Knight's Government Contracts Group will review any publicly available information from the FAR Council and class deviations issued by agencies and issue a follow-up alert if warranted. For more information or questions regarding the Safety Guidance, please contact the authors.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.