Guidance for Federal Contractor Compliance With COVID-19 Executive Order

On September 9, 2021, President Biden issued Executive Order 14042:  Ensuring Adequate COVID Safety Protocols for Federal Contractors (“Order”).

As anticipated, last Friday the Safer Federal Workforce Task Force issued Guidance implementing the Order. The 14-page Guidance includes definitions, description of the specific requirements contractors must undertake, and a list of FAQs.

Vaccination / Masking Requirement

The Guidance states that unless legally exempt, such as an accommodation for disability or religious belief, “covered contractor employees must be fully vaccinated no later than December 8, 2021.”  Covered employees and site visitors must follow CDC guidance for masking and physical distancing.

Covered contractors must also require the following for all individuals in covered workplaces:

• Wear appropriate masks consistently and correctly (over mouth and nose);
• Wear appropriate masks in any common areas or shared workspaces (including open floorplan office space, cubicle embankments, and conference rooms); and
• For individuals who are not fully vaccinated, wear a mask in crowded outdoor settings or during outdoor activities that involve sustained close contact with other people who are not fully vaccinated, consistent with CDC guidance.

Scope

The Guidance does not alter the scope of the Order’s coverage or exclusions and applies to:

• procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property;
• contract or contract-like instrument for services covered by the Service Contract Act (SCA);
• contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 CFR 4.133(b); or
• contract or contract-like instrument entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.

Subcontracts solely for the provision of products are expressly excluded and contracts for the provision of products are not included in the list of covered contracts or contract-like instruments.  Grants and contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold (currently $250,000) are also expressly excluded.

One point worth watching is that the Guidance “strongly encourages” agencies to apply the Guidance to contracts “for the manufacturing of products,” which seems to contradict the Order’s exclusion of subcontracts solely for the provision of products.

Covered Employees

Covered contractor employee means any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or 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.

Covered contractor workplace means 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.

An employee works “in connection with” a covered contract if they “perform[s] duties necessary to the performance of the covered contract, but [is] not directly engaged in performing the specific work called for by the covered contract.  These functions may include, for example, “human resources, billing, and legal review, perform work in connection with a Federal Government contract.”

Thus, the Guidance greatly expands coverage to remote employees and any employee at a federal contractor location where any employee is working “on or in connection with” a covered federal contract.  The Guidance principally determines coverage based on whether work on or in connection with the covered contract is being performed at a location.

Timing

For contracts awarded prior to October 15, the requirements of the EO and Guidance must be incorporated when the option is exercised or an extension is made.  Requirements must be incorporated into new contracts awarded on or after November 14.  Between October 15 and November 14, agencies must include the clause in the solicitation and are encouraged but not required to include the clause in contracts awarded during this time – agencies are only required to do so if the solicitation was issued on or after October 15.

Additional Points

There are several additional specific requirements for covered contractors to meet, including:

• designating a person or persons to coordinate COVID-19 safety efforts;
• reviewing employees’ documentation proving vaccination status (note that the Guidance includes specific information about approved documentation);
• communicating information on required safety protocols to individuals at covered contractor workplaces.

We will keep you updated with further developments as we continue to learn more about the Guidance.