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The Safer Federal Workforce Task Force has issued its Guidance for Federal Contractors and Subcontractors (Guidance). Note that the Guidance applies only to “covered contracts,” which are contracts that include the clause (Clause) set forth in Sec. 2(a) of Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Federal Acquisition Regulatory Council (FARC) is to conduct rulemaking and take related action to ensure that the Clause is incorporated into federal contracts. Until that happens, federal contractors likely will not see the Clause in its contracts. Following is a broad summary of the Guidance.

Covered Entities

The Guidance broadly defines “contract and contract-like instrument” by incorporating the definition set forth here. Contractors and subcontractors at any tier are subject to the Guidance and each must “flow the Clause down to the next lower-tier subcontractor.”

Consistent with Sec. 5(b)(v) of EO 14042, compliance with the Guidance is not required under contracts or subcontracts “for the manufacturing of products” or those with a value equal to or less than the Simplified Acquisition Threshold (currently $250,000.00, but with limited exceptions – see p. 2.1-17). However, the Guidance “strongly encourages” agencies to voluntarily include the Clause in such contracts.

The Guidance applies to all businesses irrespective of size.

Covered Individuals

The vaccination and related requirements apply to all employees of the contractor: (i) working on or in connection with a covered contract; or (b) working at a “covered contractor workplace.” “Covered contractor workplace” means any physical location controlled by the contractor at which “any” employee working on or in connection with a covered contract is likely to be present during performance of the contract. The Guidance requirements apply to all employees at the facility, even if working in separate areas of the building or on other floors, and applies to all buildings on the contractor’s campus, even if the contract work takes place only in one building. An exception applies where the contractor can “affirmatively determine” that the separated employees will not come into contact with the covered employees for the duration of the contract.

Employees working on a covered contract from their home are covered by the Guidance vaccination requirements, but not the masking and social distancing requirements. Strictly construed, the Guidance does not apply to remote employees not working on a covered contract.

Vaccination

Absent an accommodation due to disability or a sincerely held religious belief, covered employees must be fully vaccinated by December 8, 2021. As mentioned above, this date applies only to covered contracts, which are contracts that include the Clause. After that date, covered employees must be fully vaccinated by the first day of contract performance.

The contractor must require covered employees to prove vaccination status by showing or providing a copy of the immunization record from a healthcare provider, pharmacy, or public health system, a copy of the CDC vaccination record card, a medical record documenting the vaccination, or other “official documentation” containing certain information. An attestation by the covered employee is not acceptable.

Masks and Physical Distancing

Fully Vaccinated Employees and Visitors

In areas of high or substantial community transmission as tracked by CDC (see here), fully vaccinated employees and visitors must wear a mask when indoors, but do not need to physically distance. In areas of lower community transmission, fully vaccinated employees and visitors are not required to wear a mask.

Not Fully Vaccinated Employees and Visitors

Such individuals must wear a mask indoors irrespective of the level of community transmission and must, to the extent practicable, maintain a distance of at least six feet from others at all times. Masks are also required for such individuals during outdoor activities which involve sustained close contact with others who are not fully vaccinated.

Exceptions to Masks and Physical Distancing

A mask and physical distancing are not required where the employee is alone in a fully enclosed office with a closed door. Masks are not required during eating and drinking while physical distancing is maintained.

Masks may not be required where they may become wet or pose other risks to workplace health and safety. However, before excusing any such employees from wearing masks, the contractor must conduct a workplace risk assessment and approve the exception in writing.

Notice to Visitors:

Contractors should post signage at entrances that includes safety protocols for fully vaccinated and not fully vaccinated persons, including the masking and physical distancing protocols.

COVID-19 Coordinator

Contractors must designate a person or persons to coordinate the implementation of and compliance with the Guidance and the workplace protocols. The Coordinator’s duties include:

• Coordinate implementation of and compliance with the Guidance;
• Ensure that protocols are communicated to employees and “other individuals likely to be present at covered contractor workplaces” by:
  • Email, websites, memoranda, flyers, or other means;
  • Posting signage that sets for the requirements and workplace safety protocols in the Guidance, including masking and physical distancing, “in a readily understandable manner”; and
  • Ensure that employees provide proof of vaccination. On this point, the Guidance requires the employee to “show or provide their employer” with the vaccination document. The language does not expressly prohibit the contractor from utilizing a third-party to verify vaccination status, but the Coordinator should be engaged with that process and receive a copy of each’s employee’s vaccination document.
• Approve in writing any exception to wearing a mask where the mask may become wet or pose other risks to workplace health and safety.

Effective Dates

October 15, 2021: For ongoing contracts, the Clause must be incorporated into any option or extension which occurs on or after October 15, 2021.

November 14, 2021: The Clause must be included in contracts awarded on or after November 14, 2021.

Between October 15 and November 14, 2021: The Clause must be included in a solicitation issued between these dates. Agencies are encouraged to include the Clause in contracts awarded between these dates but are not required to do so (unless the solicitation was issued on or after October 15, 2021).

The Guidance “strongly encourages” agencies to incorporate the Clause into existing contracts prior to the above dates.

For additional questions, please contact Labor + Employment Member Stephen Matasich at sematasich@bmdllc.com or (330) 253-9146.