DON'T FALL BACK! For Covered Federal Contractors, COVID-19 Vaccinations, Accommodation Adjudications and Planning for Enforcement Must Be Well Underway to Meet December 8th Deadline
November will bring the dreaded “fall back” time change, marking the end of daylight savings. This year, November also brings a major time-crunch for federal contractors and subcontractors affected by Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (the “EO”): “falling back” is not an option.
HERE IT COMES! Covered Contractor Employees must be fully vaccinated no later than December 8, 2021. Covered Contractor Employees are any full-time or part-time employee of a Covered Contractor, working on in connection with a Covered Contract or working at a Covered Contractor Workplace. A Covered Contractor Workplace means a location controlled by a Covered Contractor at which any employee of a Covered Contractor working on it in connection with a Covered Contract is likely to be present. A Covered Contractor is any prime contractor or subcontractor at any tier who is party to a Covered Contract. What’s a “Covered Contract?” A Covered Contract is any contract or contract-like instrument that includes a clause requiring that the contractor (and any subcontractors) comply with guidance published by the Safer Federal Workforce Task Force (the “Clause”). See our previous post here for a list of the types of contracts and contract-like instruments that are covered.
When can we expect the Clause to be added to federal government contracts?
In the September 30, 2021 Federal Acquisition Regulation (FAR) Council Memorandum on Issuance of Agency Deviations to Implement Executive Order 14042 (the “Memo”), the FAR Council provided initial direction to the agencies that award contracts under the FAR and developed the Clause to support agencies in meeting the applicability requirements and deadlines set forth in the EO[1]. The Memo also included a reminder that agencies are required to implement the Clause on these dates[2]:
· New contracts awarded on or after November 14 from solicitations issued before October 15 (this includes new orders awarded on or after November 14 from solicitations issued before October 15, under existing indefinite-delivery contracts);
· New solicitations issued on or after October 15 and contracts awarded pursuant to those solicitations (this includes new solicitations issued on or after October 15 for orders awarded pursuant to those solicitations under existing indefinite-delivery contracts);
· Extensions or renewals of existing contracts and orders awarded on or after October 15, 2021; and
· Options on existing contracts and orders exercised on or after October 15, 2021.
Let’s do some math. Agencies have begun modifying existing contracts to include the Clause and have begun including the Clause in new solicitations. Covered Contractor Employees must be fully vaccinated no later than December 8, 2021. Recall that in order for a person to be considered “fully-vaccinated” for COVID-19 under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors it must be “two weeks after they have received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine.” Counting backwards, this means that in order to be “fully-vaccinated” by December 8, 2021, the final dose of the COVID-19 vaccine in a two-dose series or the first dose of a single-dose COVID-19 vaccine must be administered by November 24th. Counting backwards further still, this means that the first dose of the Pfizer COVID-19 vaccine must be administered by November 3rd (doses are scheduled 21 days apart) and the first dose of the Moderna COVID-19 vaccine must be administered by October 27th (doses are scheduled 28 days apart). See our previous post here for more information on how a Covered Contractor must verify vaccination.
The time is NOW for Covered Contractors to complete religious and medical accommodation adjudications. By November 24, you should know which employees will be in a position to meet the December 8th deadline. Covered Contractors should be developing and instituting written enforcement practices and manager training NOW, identifying the steps the company will take to respond to employees who fail to comply with the requirement to be fully-vaccinated or provide proof of vaccination, and who have neither received an exception nor have an exception request under consideration as of the due date.
Contact us if you need further guidance.
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Footnotes:
[1] Since the FAR has not yet been officially amended to reflect the requirements of the EO, this is what is called a FAR “Deviation” Clause; it was published to assist agencies in developing and issuing their deviations, pursuant to agency authority under FAR subpart 1.4.
[2] While the EO specifies which contracts and contract-like instruments must include the Clause, the Memo reminds federal agencies that the Safer Federal Workforce Task Force “strongly encourages agencies to apply the requirements of its guidance broadly” providing the following examples: including the Clause in contracts that have been or will be awarded prior to November 14 on solicitations issued before October 15 and contracts that are not covered or directly addressed in the EO. The Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors also strongly encourages Covered Contractors to incorporate the vaccination requirements “into their non-covered contracts and agreements with non-covered contractors whose employees perform work at covered contractor workplaces but who do not work on or in connection with a Federal contract.”
