The Federal Workforce Task Force, created by President Biden’s Executive Order on COVID Safety Protocols, released guidance on workplace safety protocols for federal contractors and subcontractor. The Guidance explains which contracts are covered, which employers are covered and the COVID-19 vaccination requirements for covered employees. Below are answers to common questions about the Guidance.
When will the Vaccine Mandate start?
Government agencies will begin implementing the new requirements during the exercise of options and extensions of existing contracts by October15, and in new contracts beginning on November 14.
Which Contracts are Covered?
The Guidance applies to “covered contracts” which includes service and construction contracts. This will include contract covered by Davis-Bacon and Service Contracts Act. The Guidance indicates that the only contracts not covered are those under the Simplified Acquisition Threshold, which is set at $250,000.00, and those under which a contractor is only providing materials. But, the Guidance “strongly encourages” agencies to include the vaccination clause in all contracts, even those that would traditionally be exempt, such as those below the $250,000 threshold.
Which Employees Are Covered?
The Guidance applies to any full or part-time contractor or subcontractor employee who works on or “in connection with” a covered agreement. Clearly, this applies to workers on the job site. But, the “in connection with” language is intended to extend coverage to employees who are not directly performing contract requirements, but provide support services, such as billing, human resources, and legal support. This means that employees working at corporate offices who support government contracts may be covered. The Guidance also indicates that remote workers will be covered in that they must comply with the vaccination portion, but not the social distancing portion.
And, the Guidance indicates that it applies to employees who may come into contact with employees working on federal projects. So, employees who are not directly engaged with federal contracts may end up being covered due to their potential contact with covered employees.
What are the Vaccination Requirements?
Employees who are covered by the Guidance must be fully vaccinated by December 8, 2021or whenever performance on a covered contract starts, whichever is later. An employee is fully vaccinated two weeks after the necessary dose(s). Unlike OSHA’s vaccination requirements, there is no opt out for employees to submit to weekly testing as an alternative to vaccination.
How Should an Employer Check Vaccination Status?
The Guidance requires employers to “review” proof of vaccination documentation. Employers may not rely on employee attestation of vaccine status or an antibody test showing prior exposure to COVID-19 or a covered vaccine. Instead, employers must review digital or paper copies of medical records documenting vaccination, such as a COVID-19 Vaccination Record Card, immunization records from a public health or state immunization information system, or other official documentation. The documentation must identify the vaccine type, date(s) of vaccine, and the name of the health care professional or clinic site administering the vaccine. Although not specifically required, employers would be well advised to copy any such documentation to respond to any future audits.
What Should Contractors Do?
Here are some steps contractors can take in response to the Guidance
- Review contract to identify whether they contain vaccination clauses.
- This includes changes to existing contracts and new contracts
- Appoint an individual or team to coordinate implementation and monitor compliance for each worksite.
- Adopt policies to:
- Verify employee vaccination status
- Evaluate employee accommodation requests, including the Americans with Disabilities Act (ADA) and religious beliefs
- Monitor and enforce masking and physical distancing requirements
- Draft flow down provisions to ensure lower-tier contractors comply with the Guidance.
- Track costs associated with implementation of the vaccine mandate to request an equitable adjustment or reimbursement.
If you need help implementing policies to address this recent Guidance, we recommend you contact an experienced construction attorney.