Mandatory Vaccines for Contractors: Updated Guidance and 8 NEW FAQs From the Safer Federal Workforce Task Force
On November 10, 2021, the Safer Federal Workforce Task Force (the “Task Force”) updated its COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (the “Guidance”). The Guidance previously required covered contractor employees to be “fully vaccinated” no later than December 8, 2021, and “fully vaccinated” is defined by the Task Force as “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.”
In response to the White House November 4, 2021 announcement extending the date by which covered contractor employees must receive their final COVID-19 vaccination to January 4, 2022, the Task Force also updated the Guidance to require that covered contractor employees must be fully vaccinated no later than January 18, 2022. (See our previous post detailing the November 4th announcements here.) As a result, any Task Force FAQs previously containing reference to the “December 8, 2021” fully vaccinated deadline were updated to reflect the new date of January 18, 2022.
Also, between November 1 and November 10, 2021, the Task Force added 8 new FAQs for federal contractors each of which provides further details regarding implementation of Executive Order 14042,Ensuring Adequate COVID Safety Protocols for Federal Contractors (the “EO”) and the Guidance. The new FAQs are in these categories: (1) “Vaccination and Safety Protocols”; (2) “Scope and Applicability of Task Force Guidance for Federal Contractors”; and (3)“Compliance.” Here are the nuts and bolts of what you need to know:
1. Corporate affiliates are covered. An employee of a corporate affiliate of a covered contractor is “considered a covered contractor employee [and is therefore subject to the Guidance] if the employee performs work at a covered contractor workplace.” The FAQ describes corporate affiliates as: “…business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly: (i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.” Also, “if 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 at a workplace controlled by a corporate affiliate of that covered contractor, that workplace is considered a covered contractor workplace.”
2. Alert Contracting Officer abouts accommodations, but don’t overshare. If a covered contractor employee who works at a Federal workplace has an approved accommodation, the covered contractor should generally notify the contracting officer so that the Federal workplace can determine whether any additional safety measures above and beyond testing, masking and physical distancing are required. It is the covered contractor’s responsibility to review, consider, and adjudicate accommodation requests – even for those employees who work onsite at a Federal workplace. Therefore, covered contractors should refrain, if possible, from disclosing to third parties the specific details about an employee’s accommodation, including the reason for an accommodation, type of accommodation, etc., even if requested by a contracting officer. Simply sharing whether or not an employee has an accommodation should be sufficient.
3. If, on January 18, 2022, certain employees are not fully vaccinated but compliance is in progress, their employment may continue, under certain circumstances. The new FAQs offer some dispensation to covered contractors who are not fully yet compliant with the Guidance but working towards it.
a. For example, a covered contractor who is still adjudicating a request for accommodation of an unvaccinated covered contractor employee may retain the employee on a covered contract or at a covered workplace but require that the employee follow required workplace safety protocols for not fully vaccinated individuals.
b. A new FAQ provides that if a covered contractor employee is not fully vaccinated by January 18, 2022, and does not on that date have an approved accommodation (or an accommodation request in process), the employee may be subject to progressive discipline rather than immediate termination. The FAQ states that, “one model for enforcement is the procedure being followed by Federal agencies regarding federal employee non-compliance.” This “model” is in the October 1st Office of Personnel Management Memorandum to the “Heads of Executive Departments and Agencies” concerning the enforcement of the COVID-19 vaccination requirement for federal employees (the “Memo”). Attached to the Memo are FAQs that provide helpful guidance to contractors on enforcement of the COVID-19 vaccination requirement.
c. Finally, another new FAQ provides that, “If a covered contractor is working in good faith towards compliance, but encounters challenges, the Federal agency contracting officer should work with the covered contractor to address the challenges.” This does not mean that compliance with the EO or the Guidance is optional. This means that the employer must be taking affirmative and good faith steps towards compliance (for example, maintaining a robust vaccine policy, publishing a timeline of expectations, granting extensions to the timeline as an exception and documenting the reasons, adhering to and enforcing the policy, adjudicating requests for accommodations in a timely manner, etc.).
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Want to know more? Here is a summary list of new FAQs:
1. Vaccination and Safety Protocols
Q: “If a covered contractor can access a covered contractor employee’s vaccination documentation, consistent with relevant privacy laws, does the covered contractor need to require the employee to show or provide documentation?”
A: No, if a covered contractor has lawful direct access to an employee’s vaccination documentation (e.g., through a State’s immunization database or an employee vaccination program, etc.), the contractor does not need to also require its employees to show or provide documentation.
Q: “Do all requests for accommodation need to be resolved by the covered contractor by the time that covered contractor employees begin work on a covered contract or at a covered workplace?”
A: No, the covered contractor may still be reviewing requests for accommodation when the covered contractor employees begin work on a covered contract or at a covered workplace. However, any employees with a pending accommodation request must follow the workplace safety protocols for not fully vaccinated individuals detailed in the Guidance.
Q: “When a covered contractor employee is not vaccinated because a covered contractor has provided the employee with an accommodation, what workplace safety protocols must the employee follow while in a Federal workplace?”
A: “The Federal agency will determine the workplace safety protocols that individuals who are not fully vaccinated must follow while in a Federal workplace.” Generally, covered contractors should notify their contracting officer when a covered contractor employee that works onsite at a Federal workplace has received an accommodation, in order for the Federal agency to assess appropriate safety measures. In most circumstances these safety measures will be masking, physical distancing, and testing protocols.
There may be circumstances where a Federal agency has determined that additional safety protocols are necessary.
In other cases, “an agency may determine that the nature of a covered contractor employee’s responsibilities at a Federal workplace are such that no safety protocol other than vaccination is adequate—in that case, covered contractor employees who are not fully vaccinated would be unable to perform the requisite work at the Federal workplace. Such circumstances do not relieve the contractor from meeting all contractual requirements.”
2. Scope and Applicability of Task Force Guidance for Federal Contractors
Q: “If a corporate affiliate of a covered contractor does not otherwise qualify as a covered contractor, are the employees of that affiliate considered covered contractor employees subject to COVID-19 workplace safety protocols for Federal contractors established through Task Force Guidance?”
A: “An employee of a corporate affiliate of a covered contractor is considered a covered contractor employee if the employee performs work at a covered contractor workplace.”
“…business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly: (i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.”
Q: “If the workplace where a covered contractor’s employees perform work on or in connection with a covered contract is a location owned, leased, or otherwise controlled by a corporate affiliate of a covered contractor that does not otherwise qualify as a covered contractor under Task Force guidance, is the workplace considered a covered contractor workplace?”
A: “If 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 at a workplace controlled by a corporate affiliate of that covered contractor, that workplace is considered a covered contractor workplace.”
3. Compliance
Q: “What steps should a covered contractor take if a covered contractor employee refuses to be vaccinated?”
A: “A covered contractor should determine the appropriate means of enforcement with respect to its employee at a covered contractor workplace who refuses to be vaccinated and has not been provided, or does not have a pending request for, an accommodation. This may include the covered contractor using its usual processes for enforcement of workplace policies, such as those addressed in the contractor’s employee handbook or collective bargaining agreements.”
One model for enforcement is the procedures being followed by Federal agencies regarding federal employee non-compliance.
“During the time period of enforcement, the covered contractor must ensure the covered contractor employee at a covered contractor workplace is following all workplace safety protocols for individuals who are not fully vaccinated.”
A Federal agency may deny Federal workplace access to a covered contractor employee who refuses to be vaccinated.
Q: “What steps should an agency take if a covered contractor does not comply with the requirements in the [Guidance]?”
A: Compliance with contractual requirements is expected. If a covered contractor is working in good faith towards compliance, but encounters challenges, the Federal agency contracting officer should work with the covered contractor to address the challenges. “If a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken.”
