Federal contractor vaccine mandates: Preparing for compliance

President Joe Biden’s September 9, 2021 COVID-19 Action Plan laid out a broad strategy to get more people vaccinated. A key piece of that strategy is the Executive Order for Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (order) that requires employees of federal government contractors to be vaccinated, unless they fall within an approved exemption. Consistent with the president’s approach, the Safer Federal Workforce Task Force issued COVID19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (guidance) on September 24 that spell out the steps of complying with the Order.

Vaccinations required for covered contractor employees

The guidance establishes an overarching vaccination requirement: Covered contractors with covered contracts must ensure their covered employees are fully vaccinated for COVID-19 by December 8, 2021, unless the employee is legally entitled to an accommodation for a disability or a sincerely held religious belief, practice, or observance. Federal contractors should note that weekly testing is not an alternative to vaccination, but may be available as an accommodation for employees with a valid medical or religious exemption.

After December 8, 2021, contractors must ensure that covered employees are fully vaccinated by the first day they perform work on a newly awarded or extended contract.

Covered contractors are also responsible for ensuring that their employees comply with other workplace safety protocols as well as with agency COVID-19 workplace safety requirements while in federal workplaces.

In terms of implementing the broad vaccination requirement, the devil is in the details. Compliance with the vaccine requirement has a lot to do with “coverage” issues – who’s a “covered” contractor and employee and what’s a “covered” workplace. The Task Force’s Guidance breaks down the following specifics for contractors:

Who is a covered contractor?

A prime contractor or subcontractor at any tier who is party to a covered contract, regardless of the contractor or subcontractor’s business size.

What contracts are covered?   

A significant threshold issue for contractors is whether they have a “covered contract” under the order. The vaccine requirement applies to contracts or contract-like instruments that specifically include language incorporating the vaccine requirements. This means that only those contractors that have entered into a contract or sub-contract with the applicable vaccine language or “clause” are subject to the requirements of the order. 

Practically, this results in a phased-in approach to contract coverage: 

• Federal agencies are encouraged, but not required to include the clause requiring compliance with the guidance in contracts issued between October 15, 2021 and November 14, 2021.
• Federal agencies must include the requirements of the guidance in contracts awarded on or after November 14, 2021.
• Federal contracts or subcontracts pre-dating October 15, 2021 must include the vaccine requirements when an extension or option is exercised with respect to the contract.
• Contractors are then responsible for incorporating the appropriate terms into their subcontracts. From there, the subcontractor is responsible for complying with the protocols and applying the requirements down to lower-tier subcontractors.

For some contractors, this could mean that the vaccine requirement may not apply to their federal contracts for months or even years. However, contractors should note that various federal agency officials may not yet be well-versed in this phased in approach and may look for compliance with the vaccine mandate by December 8 – even without the official contract clause in place.

Who is a covered contractor employee?

Once a contractor has a covered contract, it must then determine which employees are covered. The guidance provides that a covered employee is any full-time or part-time employee who works on or in connection with a covered contract or works at a covered contractor workplace.  

Notably, the vaccine mandate and other requirements include the contractor’s employees who are not working on or in connection with a covered contract, but who work at a location where employees working on a covered contract are likely to be present. 

Are remote employees included in the vaccine requirement?  

The task force sent a clear message about the scope of this requirement by stating that remote employees of covered contractors must also comply with the vaccination requirements. Remote employees do not, however, need to comply with masking/physical distancing requirements while in their own home.

What is a covered workplace?

A location (including outdoor locations) controlled by a covered contractor where employees working on or in connection with the contract are likely to be present. It does not include a covered contractor employee’s residence.

Unless a covered contractor can establish that the work of covered employees is performed in distinct areas of the same facility where no interactions will occur, all employees are subject to the vaccine requirement if they share common areas, such as stairways, lobbies, and elevators.

How is vaccination status established?

A covered contractor must require its employees to show or provide one of the following documents as proof of vaccine status:

• A copy of the record of immunization from a health care provider or pharmacy.
• A copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020).
• A copy of medical records documenting the vaccination.
• A copy of immunization records from a public health or State immunization information system.
• A copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine.

An employee can provide a digital copy of those records, if available. The guidance also provides a recent antibody test is not sufficient to prove vaccination status and that employees who have previously had a COVID-19 infection are required to be vaccinated.

Masking and physical distancing requirements at covered workplaces.

Covered contractors must also ensure that all individuals, including employees and visitors, comply with CDC guidance regarding masking and physical distancing. Covered contractors are required to check the CDC COVID-19 Data Tracker County View website at least weekly to determine proper safety protocols. Additionally, when in specific settings (such as healthcare, transportation, correctional and detention facilities, and schools), covered contractors and their employees must also follow the facilities’ mask and physical distancing guidelines.

Further, unvaccinated individuals must wear masks indoors regardless of the level of community transmission and must keep a distance of at least six feet from others at all times (to the extent practicable), including in offices and common work spaces.  

Coordinator for COVID-19 workplace safety efforts.

Covered contractors must select a person or persons to manage implementation of and compliance with the guidelines and the workplace safety protocols. The selected coordinator must ensure that the appropriate information regarding COVID-19 workplace safety protocols is provided to covered contractor employees and individuals at covered contractor workplaces, including protocols related to masking, physical distancing, and proper vaccination documentation.

Next steps for covered contractors 

The devil is also in the details in terms of compliance with the federal contractor requirements. Having a plan will help covered contractors assess and meet their obligations. Key elements include:

• Evaluate coverage issues. A threshold issue with any new employment law, regulation, or rule is to understand coverage. For federal government contractors and sub-contractors, this means reviewing existing contracts to determine timing on contract extensions and renewals. Contractors must also review open bids and new awards to evaluate coverage issues.
• Prepare for the vaccine mandate. Whether a contractor is immediately covered or anticipates being covered, it should plan to implement the vaccine mandate requirements. This will require understanding workforce vaccine levels and communicating with employees about the requirements as well as developing a policy to establish clear expectations and consequences. Contractors must also have a process for obtaining and confidentially storing proof of vaccine status.
• Process for exemption requests. Contractors should anticipate numerous medical and religious exemption requests and will need forms and procedures for reviewing those requests. Contractors will also need to consider reasonable accommodations for employees who receive exemptions, including weekly testing procedures.
• Compliance with other requirements. Contractors should not lose sight of the fact that even if their contracts are not currently covered, other federal requirements continue to apply. In particular, any employees performing work on a federal government location must be vaccinated by November 22.

As covered contractors work through these requirements, the McDonald Hopkins Labor & Employment and Federal Contracting Teams are available to answer questions, develop policies and forms, and assist with compliance.