It’s Finally Here: Task Force COVID-19 Vaccine Guidance for Federal Contractors and Subcontractors
Yesterday was September 24th, and as promised, the Safer Federal Workforce Task Force released its eagerly-awaited COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (“Guidance”).
There is a lot to digest, but here is the summary in broad terms:
Mandatory Vaccination
· Covered contractors must ensure that all covered contractor employees are fully-vaccinated for COVID-19 no later than December 8, 2021, unless the employee is legally entitled to an accommodation.
o A “covered contractor” means a prime or subcontractor (at any tier) who is party to a covered contract. See our previous post here for a list of the types of contracts and contract-like instruments that are covered.
o The Guidance defines a “covered contractor employee” as any full-time or part-time employee of a covered contractor, working: (1) on or in connection with a covered contract; or (2) at a covered contractor workplace (this include employees of covered contractors who are not themselves working on or in connection with a covered contract).
o To be specific, “employees who perform duties necessary to the performance of the covered contract, but who are not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review, perform work in connection with a Federal Government contract.”
o The Guidance defines a “covered contractor workplace” as any location controlled by a covered contractor where 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 specifically excluding a covered contractor employee’s residence).
o “An individual working on a covered contract from their residence is a covered contractor employee and must comply with the vaccination requirement…even if the employee never works at either a covered contractor workplace or a Federal workplace.”
· “Fully vaccinated for COVID-19” means two weeks after receiving the second dose in a two-dose series, or two weeks after receiving a single-dose vaccine.”
· The Guidance provides that covered contractors “must review its covered employees’ documentation to prove vaccination status.”
o Acceptable documentation is as follows (and specifically excludes an attestation of vaccination, which the Guidance indicates is not an acceptable substitute):
§ A copy of the record of immunization from a health care provided or pharmacy;
§ A copy of the COVID-19 Vaccination Record Card (CDC Form);
§ 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 the vaccine name, date(s) of administration, and name of the health care professional or clinic site administering the vaccine.
o “Covered contractors may allow covered contractor employees to show or provide to their employer a digital copy of such records.”
o The covered contractor is responsible for ensuring compliance with the requirements related to the showing or provision of proper documentation.
· The Guidance provides that a covered contractor should review and consider what, if any, accommodation it must offer to employees who communicate to the covered contractor that they are not vaccinated against COVID-19 because of a disability (which includes medical conditions) or because of a sincerely-held religious belief, practice, or observance.
o “The contractor is responsible for considering, and dispositioning, such requests for accommodation regardless of the covered contractor employee’s place of performance.”
§ “If the agency that is the party to the covered contract is a ‘joint employer’ for purposes of compliance with the Rehabilitation Act and Title VII of the Civil Rights Act, both the agency and the covered contractor should review and consider what, if any, accommodation they must offer.”
· “Covered contractors are strongly encouraged to incorporate similar 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.”
o Examples provided by the Guidance include contracts for the provision of food services, onsite security, or groundskeeping services at covered contractor workplaces.
Masking and Physically Distancing
· Covered contractors must ensure that all individuals who enter a covered contractor workplace (e.g., employees, visitors, etc.) comply with CDC guidance related to masking and physical distancing, including, but not limited to:
o In areas of high or substantial community transmission, individuals who are fully- vaccinated must wear a mask.
o Individuals who are not fully-vaccinated must wear a mask indoors and in certain outdoor settings, and to the extent practicable, must maintain a distance of at least 6 feet from all others at all times.
o Covered contractors must ensure that those required to wear a mask are wearing masks appropriately, consistently and correctly, and in all areas in which they are required to do so.
· If a covered contractor employee communicates to the covered contractor that he/she/they cannot wear a mask because of a disability (which includes medical conditions) or a sincerely-held religious belief, practice or observance, the covered contractor should review and consider what accommodation, if any, it must offer.
· Exceptions to mask wearing and/or physical distancing may be provided by the covered contractor consistent with the CDC guidelines (e.g., for a limited time while an individual is eating or drinking and maintaining an appropriate distance from others, etc.).
Designating an Individual(s) Responsible to Coordinate COVID-19 Workplace Safety Efforts
· Covered contractors must designate a person or persons to coordinate, implement, and ensure compliance with the Guidance.
o “The designated person or persons may be the same individual(s) responsible for implementing any additional COVID-19 workplace safety protocols…and their responsibilities to coordinate COVID-19 workplace safety protocols may comprise some or all of their regular duties.”
· This individual(s) is responsible for ensuring that information on required COVID-19 workplace safety protocols is provided to covered contractor employees and all others likely to be at the covered contractor workplace, “including by communicating the required workplace safety protocols and related policies by:
o Email;
o Websites;
o Memoranda;
o Flyers, or other means; and
o Posting signage at the covered contractor workplaces that sets forth the requirements in a readily understandable matter.
· This individual(s) is responsible for ensuring “that covered contractor employees comply with the requirements…related to the showing or provision of proper vaccination document.”
It is also important to note that “[w]hile at a Federal workplace, covered contractor employees must also comply with any additional agency workplace safety requirements for that workplace.”
Included at the back of the Guidance is a list of twenty-one (21) “Frequently Asked Questions” and corresponding answers. These FAQs provide helpful, additional information regarding how the Guidance will be applied in practice.
Contact us for additional details about how this Guidance applies to your workforce.
