On Sept. 24, 2021, the Safer Federal Workforce Task Force (Task Force) issued the COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. The Guidance, which is part of President Biden’s COVID-19 Action Plan, Path Out of the Pandemic, requires that covered employees become fully vaccinated as early as Dec. 8, 2021, unless an accommodation is required or an exception applies. The specific deadline for full vaccination varies based on when the covered contract is entered into, modified or renewed.

Which federal contractors are covered?

Under the Guidance, not all federal contracts are covered. However, covered contracts and “contract-like instruments” include those that are:

  • procurement contracts for construction under the Davis Bacon Act;
  • contracts for services or concessions under the Service Contract Act; and
  • contracts with the federal government connected to federal property or land and related to offering services for federal employees, their dependents or the general public.

The terms “contract” and “contract-like instrument” are defined broadly, and include purchase orders, task letters, exercised contract options and bilateral contract modifications.

A covered contractor employee is a full time or part time employee of a covered contractor who is (a) working on or in connection with a covered contract; or (b) working at a covered contractor workplace or federal workplace. Under this definition, all employees at any workplace where a covered contract is performed, including administrative personnel, such as human resources and finance employees, would fall under the mandatory vaccine requirement.

The guidance also clarifies that even if an employee is working remotely from his or her residence on a covered contract, that employee must comply with the mandatory federal contractor vaccine requirement.

What is required regarding federal contractor vaccines?

All covered contractor employees must be fully vaccinated for COVID-19, unless the person is entitled to an accommodation for a disability or sincerely held religious belief.

Persons are considered fully vaccinated two weeks after they receive their second dose of a two-dose vaccine or two weeks after receiving a single-dose vaccine. Previously having and recovering from COVID-19 and antibody tests are not permissible substitutes for being fully vaccinated.

To prove vaccination status, employees must show or provide one of the following:

  • a copy of the record of immunization from a health care provider or pharmacy;
  • a copy of the COVID-19 Vaccination Record Card;
  • a copy of medical records documenting the vaccination;
  • a copy of immunization records from a public health or state immunization information system; or
  • 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 site administering the vaccine.

Neither a recent antibody test nor an attestation of vaccination status is sufficient.

What is required regarding masking and physical distancing?

sign saying mask required to represent federal contractor vaccine mandates

Covered federal contractors are responsible for also ensuring that all employees and visitors comply with CDC guidance for masking and physical distancing while at a covered contractor workplace. When there is high or substantial community COVID-19 transmission, all persons must wear a mask in indoor settings regardless of vaccination status. When there is low or moderate community COVID-19 transmission, only unvaccinated persons must wear a mask. However, fully vaccinated persons are not required to engage in physical distancing even if the transmission level is high or substantial. Unvaccinated persons should maintain a social distance of six feet at all times to the extent possible when at a covered contractor workplace.

Employers may need to provide accommodations to employees who cannot wear masks due to a disability or sincerely held religious belief. In addition, employees do not need to wear a mask when alone in an office with floor to ceiling walls and a closed door; while eating or drinking; while engaging in activity in which a mask may get wet or during high intensity activity where a person may have difficulty breathing with a mask; or activities in which wearing a mask creates a risk to workplace safety, health or a job duty as determined by a workplace assessment. These exceptions must be approved in writing by an authorized representative of the covered contractor.

Who must ensure compliance with the guidance?

In addition to the above requirements, every covered contract must designate a person or persons to ensure compliance with and implement the guidance and requirements regarding federal contractor vaccines, masking and physical distancing. The designated person or persons must provide information on COVID-19 safety protocols to covered contract employees and other persons present at the covered contractor workplace. The designated person(s) is also responsible for ensuring employees comply with the documentation requirements.

For any contract that was awarded prior to Oct. 15, 2021, and where performance on that contract continues, these vaccination, masking and physical distancing requirements will be incorporated when an option is exercised or when an extension is made. New contracts awarded on or after Nov. 14, 2021, will incorporate the requirements. For contracts between Oct. 15, 2021, and Nov. 14, 2021, federal agencies are encouraged to include the requirements and are required to do so if the solicitation for the contract was issued on or after Oct. 15, 2021. As noted above, “contract” will be interpreted broadly – so many types of agreements, such as purchase orders and task letters, will likely be considered “new contractsand will include these new requirements.

This guidance is still new and some questions remain unanswered. However, what is clear is that the federal government intends to cast a wide net in terms of coverage. Employers that are covered contractors must takes steps now to ensure employees will be fully vaccinated as soon as Dec. 8, 2021.