On September 24, 2021, the first Guidance for Federal Contractors and Subcontractors (Guidance) was issued by the Safer Federal Workforce Task Force (Task Force). Broadly, the Guidance requires:
- Vaccination of employees working on a contract or in the same facility as employees working on a contract, "except in limited circumstances where an employee is legally entitled to an accommodation"
- Compliance by employees and visitors with masking and physical distancing requirements when in a contractor facility
- Designation of a person or persons to coordinate COVID-19 workplace safety efforts
Previously, on September 9, 2021, President Biden issued Executive Order 14042, which mandated that a clause be included in federal contracts requiring federal contractors to comply with COVID-19 guidance issued by the Task Force. Now that the Task Force has issued guidance, employers with federal contractors will need to take steps to comply with its requirements.
The requirements of the Guidance go into effect on December 8, 2021, for any contract, subcontract or other agreement imposing the requirements of Executive Order 14042 (Covered Contract). For any Covered Contract entered into after December 8, 2021, including extended or renewed contracts, the requirements of the Guidance begin on the first day of performance of the contract. This effectively forces any contractor anticipating new or extended contracts after December 8, 2021, to come into compliance prior to the date of award to ensure that it can perform under the contract.
Broad Vaccination Obligation
All employees working on a Covered Contract must be fully vaccinated unless the "employee is legally entitled to an accommodation" because of a disability or religious reasons. This requirement is broader than many employers might envision: It includes an employee working on the Covered Contract who works entirely remotely and does not come into direct contact with any other employees. For contractors with a large facility or campus, all employees in that facility or on that campus must be fully vaccinated (or given an accommodation) regardless of whether the employee works on a Covered Contract unless the contractor can affirmatively demonstrate that employees working on a Covered Contract will never interact with those employees who do not work on a Covered Contract. Interaction includes contact in any common area such as lobbies, elevators, stairwells, kitchens, dining areas and parking garages. This is, of course, a standard that contractors are extremely unlikely to be able to meet. Accordingly, contractors should assume that they need to impose the vaccination requirement on any employee who works in the same facility as employees working on a Covered Contract.
The language regarding accommodations for disability or religious reasons effectively limits the ability of a contractor to grant accommodations. The Guidance states that a contractor must grant accommodations only when the employee is "legally entitled" to it. This includes exemptions for sincerely held religious beliefs and individuals with disabilities. Under this standard, employers cannot merely accept an employee's claim for exemption at face value. Insincere religious proclamations or "medical" exemptions that do not implicate a disability will likely not meet the "legally entitled" standard. Contractors should examine accommodation requests and should consider consulting with legal counsel to ensure that granted exemptions meet applicable legal standards.
Strict Masking Requirements
The masking requirements of the Guidance go significantly beyond the requirements that currently exist in many jurisdictions. Initially, the Guidance does not allow for masks with exhalation valves, vents or other openings, or fabric that does not block light. The Guidance does not allow for face shields as an alternative to masks (except potentially where an individual is excused from the masking requirement as an accommodation). Fully vaccinated employees must wear masks inside contractor facilities in areas of the country that have a high or substantial rate of community transmission. Even after the rate of transmission drops to moderate or low, the rate must remain at moderate or low for fourteen days before the masking requirements may be removed. The community transmission rate is determined by the CDC COVID-19 data tracker site. As of the date of this article, the community transmission rate is high or substantial in 98% of the country. The Guidance requires that individuals who are not fully vaccinated both wear a mask regardless of the community transmission rate and physically distance from other individuals.
The contractor must ensure that the masks are worn consistently and correctly, and that masks are worn in any common areas or shared workspaces, including any open office arrangements such as cubicle embankments and conference rooms. Employees who are not fully vaccinated must also wear a mask in any crowded outdoor setting or any outdoor settings involving sustained close contact with other people who are not fully vaccinated. When masking is required, a mask may be removed only when an individual is "alone in an office with floor to ceiling walls and a closed door," when an individual is actively eating or drinking while maintaining appropriate social distancing, and for brief security checks.
The Guidance goes beyond what is normally required of federal contractors for subcontracting. Contractors are required to include the obligations in any subcontracts they enter into, and they are "strongly encouraged to incorporate similar vaccination requirements into their non-covered contracts and agreements."
Federal contractors and subcontractors should immediately begin taking steps to come into compliance with the requirements of the Guidance. The failure to do so could jeopardize their ability to obtain new contracts and subcontracts. Note that the Task Force may issue additional or updated guidance in the future — for example, later guidance may address concerns about waning immunity over time or the new availability of booster shots for certain groups.
If your organization has any questions about the implications of the Guidance, please contact the authors of this alert or any other attorney in Venable's Labor and Employment Group.
Please look for additional guidance forthcoming from our colleagues in the Government Contracting Group.