Cathy Kelaghan –
September 30, 2021

On September 9, President Biden announced his Path Out of the Pandemic COVID-19 Action Plan which included an order directed at federal contractors, subcontractors, and in some instances, visitors.  On September 24, the Safer Federal Workforce Task Force issued guidance to implement the President’s order and this guidance includes definitions, specific requirements of federal contractors, and a number of Frequently Asked Questions (“FAQs”). 

The guidance includes workplace safety protocols that apply to all federal contractors and subcontractors with a covered contract.  Such entities will need to ensure:  (1) the COVID-19 vaccination of covered contractor employees, except where an employee is entitled to an accommodation; (2) compliance by employees and visitors with the guidance related to masking and physical distancing while in covered contractor workplaces; and (3) designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

So, who is really covered by this guidance and what does it mean?  A few definitions may help.  A  covered contract  is any contract that includes a clause specifying that the contractor or subcontractor shall comply with the guidance published.  Covered contractors are prime contractors and all subcontractors, at any tier.  A covered contractor employee  includes all employees of a covered contractor working “on or in connection with a covered contract or working at a covered contractor workplace.”  This definition clearly implies that all employees of the corporate entity holding the government contract or subcontract are included, even those employees not working directly on the government contract.  The FAQs included in the guidance address remote workers and state that all remote workers of a contractor or subcontractor must comply with the vaccination requirement.

As you would expect, a covered contractor is required to review its employees’ documentation to prove vaccination status.  The guidance provides specific examples of documentation that meets this requirement, including a copy of the COVID-19 Vaccination Record Card.  One of the FAQs specifically states that an attestation of vaccination is not an acceptable substitute for documentation of proof of vaccination.

As expected, the guidance also addressed masking and distancing.  All covered contractor employees and visitors to a covered contractor workplace must comply with published CDC guidance for masking and physical distancing.  The guidance then provides different requirements for areas of high or substantial community transmission versus areas of low or moderate community transmission.  In addition, the guidance differs for individuals who are fully vaccinated and those who are not fully vaccinated regarding masking and distancing.

The timing of compliance is also addressed in the guidance.  Covered contractor employees must be fully vaccinated by December 8, 2021.  After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded or renewed covered contract when the clause described above has been incorporated into the covered contract.  As you can imagine, these new requirements will be phased in given the timing of contract renewals.  By October 8, 2021, the Federal Acquisition Regulatory Council is supposed to issue guidance for agencies to add the clause requiring federal contractors and subcontractors to comply with the guidance.

Stall Legal will continue to monitor further government action and guidance on this topic.  And, as always, we are here to assist and answer any questions you may have.