As you may know, on September 9, 2021, the Biden Administration issued an “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors.”
This Executive Order requires all federal contractors and subcontractors to include a clause in all “contracts and contract-like instruments” specifying “that the contractor or subcontractor shall, for the duration of the contract, comply with all guidelines for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance or Guidance).”
On September 24, 2021, the Safer Federal Workforce Task Force issued guidance clarifying what is required by the September 9, 2021, Executive Order, including:
- Definitions of key terms, including “contracts and contract-like instruments,”
- Vaccination requirements for covered federal contractors and subcontractors,
- Masking and physical distancing guidance for covered contractor employees and visitors, and
- Designation of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.
Who is Affected by the September 9, 2021, Executive Order?
The Executive Order on vaccine mandates is far-reaching and affects any business that contracts with the federal government, including subcontractors.
Any “contract or contract-like instrument” must include a clause requiring compliance with the Safer Federal Workforce Task Force guidance. So, to determine whether your business is covered, you must look to the definition of “contract or contract-like instrument.”
The Task Force Guidance refers to the definition of “contract and contract-like instrument” found in the Department of Labor’s proposed rule “Increasing the Minimum Wage for Federal Contractors,” 86 Fed. Reg. 38,816, 38,887 (July 22, 2021), which defines a contract or contract-like instrument as “an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.”
The definition of “contract” is to be interpreted broadly and includes:
- A mutually binding agreement to furnish services for payment,
- Construction contracts,
- All contracts and “any subcontracts of any tier thereunder,”
- Negotiated or advertised contracts,
- Procurement actions,
- Lease agreements,
- Cooperative agreements,
- Provider agreements,
- Intergovernmental service agreements,
- Service agreements,
- “Any contract within the definition provided in the FAR at 48 CFR chapter 1 or applicable Federal statutes,”
- Any contract covered under a federal procurement statute,
- Contracts that are the result of competitive bidding or awarded to a single source,
- Awards and notices of awards,
- Job orders and task letters issued under ordering agreements,
- Letter contracts,
- Orders including purchase orders,
- Exercised contract options,
- Bilateral contract modifications,
- Contracts covered by the Service Contract Act,
- Contracts covered by the Davis-Bacon Act,
- Concessions contracts,
- Contracts in connection with federal property or land,
- Contracts related to offering services for federal employees, their dependents, or the general public, and
- “Any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing.”
The Executive Order Applies to Subcontractors as Well as Contractors
The prime contractor is responsible for ensuring compliance by first-tier subcontractors, then higher-tier subcontractors are responsible for ensuring compliance by the next lower-tier subcontractors, etc.
The Executive Order’s requirements do not apply to subcontracts that are solely for the provision of products.
What do Contractors and Subcontractors Need to Do to Comply with the Executive Order on COVID Vaccine Mandates?
Covered contractors and subcontractors are required to:
- Ensure that covered contractor employees comply with the Safer Federal Workforce Task Force guidance/ workplace safety protocols on vaccination, masking and physical distancing, and designation of a COVID-19 coordinator, and
- Incorporate a clause into contracts that requires compliance with the DOL’s Safer Federal Workforce Task Force guidance.
What are the Requirements in the DOL/ Safer Federal Workforce Task Force’s Vaccine Mandate Guidance?
There are three main components to the Guidance issued by the Department of Labor/ Safer Federal Workforce Task Force:
- Mandatory vaccination of covered contractor employees,
- Requirements related to masking and physical distancing for covered contractor employees and visitors, and
- Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts.
COVID-19 Vaccination of Covered Contractor Employees
Covered contractors must ensure that their employees are fully vaccinated for COVID-19 unless the employee is entitled to a valid legal accommodation.
Covered contractors must review their employee’s documentation to determine whether each employee has been vaccinated, and must obtain one of the following forms of documentation from each employee:
- A copy of their immunization record from a healthcare provider or pharmacy,
- A copy of their COVID-19 Vaccination Record Card,
- A copy of their medical records documenting the vaccination,
- A copy of their immunization record from a public health or State immunization information system, or
- A copy of any official documentation of vaccination that includes the vaccine name, the date provided, and the name of the healthcare professional or clinic site that provided the vaccination.
Antibody tests are not sufficient documentation.
Covered contractors can accept digital copies of vaccination records including photographs, pdfs, or scanned images of the vaccination documentation.
Covered contractors are encouraged to (but not required to) incorporate similar clauses into non-covered contracts and agreements with non-covered contractors whose employees perform work at covered contractors’ workplaces.
Compliance with Masking and Physical Distance Guidance
Covered contractors are required to ensure that all covered contractor employees and visitors comply with the CDC’s guidance for masking and physical distancing.
For fully vaccinated employees and visitors:
- In high community transmission areas, fully vaccinated people must wear a mask indoors,
- In low community transmission areas, fully vaccinated people do not need to wear a mask, and
- Fully vaccinated people do not need to physically distance themselves regardless of community transmission level.
For non-vaccinated employees and visitors:
- Regardless of community transmission level, unvaccinated people must wear a mask indoors and in some outdoor settings, and
- Unvaccinated people must maintain a physical distance of six feet from others at all times.
When masking is required, covered contractors must require employees and visitors to:
- Wear the masks correctly (over the mouth and nose),
- Wear masks in any common areas or shared workspaces, and
- For unvaccinated individuals, wear masks in crowded outdoor settings or during outdoor activities that involve close contact with others who are not fully vaccinated.
How do you know if your community has high or low transmission levels?
You can check the CDC COVID-19 Data Tracker County View website to determine the community transmission level for your area, and covered contractors should check at least once per week to determine the proper workplace safety protocols for their area.
Designation of a COVID-19 Coordinator at Covered Contractor Workplaces
Covered contractors are also required to designate one or more persons to ensure implementation of and compliance with the Department of Labor/ Safer Federal Workforce Task Force’s Guidance.
The designated coordinator must ensure that information on the workplace safety protocols including the masking and physical distancing requirements is communicated to covered contractor employees and visitors through:
- Signs, and
- Other means.
The communications should set “forth the requirements and workplace safety protocols in this Guidance in a readily understandable manner.” The coordinator is also responsible for ensuring compliance with the vaccine documentation requirements.
Please feel free to contact one of our Murray Lobb attorneys to obtain our legal advice regarding your business’ COVID-19 vaccination policy or compliance with the September 9, 2021, Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors and the September 24, 2021, Safer Federal Workforce Task Force Guidance.
We also remain available to help you with all your general business, corporate, and estate planning needs.