By Benjamin Orsatti, Esq., Associate General Counsel & Senior HR Consultant, East Coast Risk Management
On September 9, President Biden signed Executive Order (EO) 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” requiring executive departments and agencies to include contract clauses mandating that contractors and subcontractors comply with guidelines published by the Safer Federal Workforce Task Force.
Which Contracts Are Covered?
The new vaccine mandate will apply to the following types of contracts:
- Procurement contracts for services, construction, or a leasehold interest in real property;
- Contracts for services covered by the Service Contract Act;
- Contracts for concessions; and
- Contracts 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 cover grants, contracts valued at $250,000 or less, or subcontracts solely to provide products. Also not covered are employees who perform work outside the United States.
Which Contractors Are Covered?
Per the guidance, covered contractors include prime and subcontractors that are parties to:
- Contracts awarded on or after November 14,
- Solicitations issued on or after October 15, and
- Options exercised on or after October 15.
Which Employees are Covered?
A covered employee is “any full-time or part-time employee of a covered contractor: (1) working on or in connection with a covered contract or (2) working at a covered contractor workplace.” A covered employee works “in connection with a covered contract” when performing “duties necessary to the performance of the covered contract, but [is] not directly engaged in performing the specific work called for by the covered contract,” such as human resources, billing, and legal review. Additionally, a covered contractor workplace is 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 does not include the employee’s residence.
FAR Deviation Clauses
Following the release of the task force guidance, the Federal Acquisition Regulation (FAR) Council issued a memorandum directing agencies to incorporate FAR 52.223-99, a “FAR Deviation Clause” requiring adherence to EO 14042 and the task force guidance, as amended during the performance of the contract, into new contracts awarded on or after November 14, from solicitations issued before October 15; solicitations issued on or after October 15; and any extensions, renewals, and the exercise of options taking place after October 15. Numerous agencies have since issued class deviations following the FAR Council’s directive. Notably, the General Services Administration’s class deviation effectively broadened the vaccination mandate by directing contracting officers to request bilateral modification of all contracts awarded before October 15 to incorporate FAR 52.223-99, in addition to requiring incorporation of the clause in later contracts and solicitations. In addition, the September 24 task force guidance “encouraged” agencies to include the FAR clause in contracts below the simplified acquisition threshold, and in contracts for supplies or products.
Equitable Adjustment (it never hurts to ask)
Agencies have not clearly indicated whether or how they will compensate contractors for costs incurred to comply with the task force guidance, nor have they detailed specific penalties for non-compliance with FAR 52.223-99 beyond possible termination of the contract. When negotiating the incorporation of the FAR 52.223-99 clause into applicable contracts, contractors should consider including language reserving the contractor’s right to submit a request for equitable adjustment or claim to recover additional costs once determined. Of note, any related equitable adjustments or compensation for incurred costs will likely require adequate documentary support, including vaccination records and other proof of compliance with safety measures.
Covered federal contractors and subcontractors must conform to the following safety protocols prescribed in the current task force guidance:
- COVID-19 vaccination of every covered contractor employee, except in limited circumstances when an individual is legally entitled to an accommodation;
- Compliance by individuals, including covered contractor employees and visitors, with the guidance related to masking and physical distancing while in covered contractor workplaces; and
- Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at the covered contractor workplaces.
Vaccination & Masking
All contractor employees must be fully vaccinated by January 28, 2022, or before the first day of performance on a newly awarded contract. There’s no exception for employees with a previous COVID-19 infection or a recent antibody test, but there are exceptions to accommodate disabilities and sincerely held religious beliefs.
Employers must ensure compliance by obtaining documented proof of vaccination from each employee. An attestation of vaccination by the individual is not an acceptable method of proof. Federal contractors are not required to provide employees with on-site vaccination options.
Covered contractors and subcontractors must ensure all individuals (including employees and visitors) comply with masking and social distancing requirements. The rules differ for vaccinated versus unvaccinated persons.
Vaccinated persons are not required to physically distance but must wear a mask indoors in locations where high or substantial community transmission is occurring, as set forth in the Centers for Disease Control and Prevention’s (CDC) COVID-19 data tracker county view. Contractors must review community transmission data weekly and adopt more protective workplace safety protocols when local transmission rates are high or substantial.
Unvaccinated persons must wear masks indoors and outdoors at all times regardless of community transmission rates and, to the extent practicable, must maintain six feet of social distance.
The current guidance does not require contractors to obtain proof of vaccination from a visitor. They are expected to post the protocols at entrances and instruct visitors to comply while at the covered contractor workplace.
Contractors also may take other reasonable steps to ensure compliance, such as by communicating the protocols to visitors before their arrival or imposing the masking and social-distancing obligations on all visitors, regardless of vaccination status.
Your New Safety Guy
Covered contractors and subcontractors must designate a person to coordinate and implement the task force’s guidance. The designated individual is responsible for ensuring compliance with the vaccine mandate and verifying the safety protocols are clearly communicated to and posted for employees and visitors. The contractor is not required to create a new safety coordinator position, and the responsibilities may be assigned to a current employee who has other roles or duties.
Accommodation & Exemptions
Employees may be exempted from the vaccination mandate based on a medical condition (disability) or religion (sincerely held religious belief, practice, or observance). In the Equal Employment Opportunity Commission (EEOC) guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” the agency recommends employers consider providing telework or reassignment as a reasonable accommodation to unvaccinated employees. The difficulty with the federal contractor mandate is that remote employees who work on or in connection with a federal contract are covered by the vaccine mandate, so offering unvaccinated employees the opportunity to work from home as an accommodation does not appear to be available.
In addition, offering unvaccinated employees the option of testing weekly, permissible under the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard, does not appear to be available based on the current task force guidance. So, even if a federal contractor determines an employee is eligible for an exemption, the contractor may not be able to provide the employee with a reasonable accommodation.
Contractors may incur costs or delays when complying with the vaccine mandate and other required COVID-19 safety protocols. For example, contractors may need to hire an employee to supervise implementation and enforcement of the FAR 52.223-99 clause in their contracts. Such implementation may result in costs or delays related to determining the applicability of exemptions for unvaccinated employees, terminating employees who refuse vaccination but lack a valid exemption, addressing complaints – both from individuals and through collective bargaining – concerning the vaccine mandate, resolving employment disputes related to the vaccination requirement, and instilling physical and administrative measures to facilitate compliance with safety measures such as social distancing, sanitation, and masking.
If you are an employer with questions about any issue relating to safety, human resources, or workers’ compensation, contact East Coast Risk Management by calling 724-864-8745 or sending an email to at firstname.lastname@example.org.
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