W. Scott Cole | September 28, 2021
On Friday, September 24, the White House’s Safer Federal Workforce Task Force issued new guidance regarding vaccination requirements and other COVID safety measures for federal contractor employees. This Guidance implements President Biden’s Executive Order regarding COVID precautions for government contractors, issued Thursday, September 9, 2021.
The Guidance requires executive agencies to insert a clause in its contracts with certain federal contractors requiring COVID vaccinations for all Covered Contractor Employees, except for those workers legally entitled to accommodation for a disability or for religious reasons. The Guidance does not allow masking as a substitute for vaccination. The Guidance would apply to any university who acts as a Covered Contractor and would also apply not only to those employees working on a federal contract, but all employees of the university who share a workplace location with employees working directly or indirectly on a federal contract. Of specific interest to Florida colleges and universities, the Guidance specifically states that it supersedes any contrary state or local law or ordinance.
Summary of Key Provisions
- A Covered Contractor is a federal prime contractor or subcontractor at any tier who is party to a Covered Contract.
- A Covered Contract is defined as contract or contract-like instrument between two or more parties creating obligations that are enforceable or otherwise recognizable at law. This includes procurement actions, lease agreements, cooperative agreements, provider agreements, and intergovernmental service agreements. The term also includes any subcontracts of any tier thereunder.
- A Covered Contractor Employee is any full-time or part-time employee of a Covered Contractor (1) working on or in connection with a Covered Contract, or (2) working at a Covered Contractor workplace. This includes employees of Covered Contractors who are not themselves working on or in connection with a Covered Contract (i.e. all employees)
- An employee works “in connection with a Covered Contract” when he performs 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.
- Remote workers working on or in connection with a Covered Contract, must be vaccinated, regardless of whether they ever work at or visit a covered location.
- A Covered Contractor Workplace is a location controlled by a Covered Contractor at which 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. A Covered Contractor workplace does not include a Covered Contractor employee’s residence.
- Commencing on October 15, 2021, federal agencies must include the requirements when exercising options or extensions for previously-awarded Covered Contracts.
- Commencing on November 14, 2021, agencies must include the latest requirements in new Covered Contracts.
- For Covered Contracts solicitations issued between October 15 and November 14 2021, agencies must include the new requirements in the solicitation.
- For Covered Contracts awarded or issued between October 15 and November 14, 2021, agencies are strongly encouraged to include the requirements but need not do so unless the solicitation was issued on or after October 15, 2021.
- All Covered Contractor employees, including those who previously had COVID and Covered Contractor employees working from home, must be fully vaccinated by December 8, 2021.
- Accommodations may be made for a disability or sincerely held religious belief, practice, or observance.
- Contractors must require all employees and visitors in contractor workplaces following Center for Disease Control and Prevention guidance regarding physical distancing and masks. In areas of high community transmission, employees and visitors, regardless of vaccination status, must wear masks inside buildings.
- Covered Contractors must designate a person to implement the Guidance.
- The Federal Acquisition Regulatory Council will amend its Federal Acquisition Regulation by October 8, 2021 to provide for the inclusion of the new clause in Covered Contracts requiring Covered Contractors and subcontractors to comply with the Task Force Guidance. By incorporating the Task Force Guidance, it will allow for updates to the contract requirements based on changes in the pandemic.