UPDATED: Contractor Personnel Must Get COVID-19 Vaccines By December 8, 2021

Late last week, the Safer Federal Workforce Task Force issued guidance to federal government contractors and subcontractors for dealing with the continuing COVID-19 pandemic.

The gist? Covered contractor personnel must be fully vaccinated by December 8, 2021, and contractors must ensure that personnel abide by applicable masking and social distancing recommendations.

Essentially, the Guidance sets forth a three-part workplace safety protocol for dealing with the COVID-19 pandemic. Before we break into the protocol, let’s set the scene:

• The Task Force Guidance applies broadly, to virtually any federal government contractor or subcontractor. If you perform on any contract valued above $250,000, then this Guidance will affect you.
• As noted above, the Guidance applies to subcontractors. Prime contractors must flow these requirements down to their subcontractors (who must then flow it down to any of theirs). The broad applicability of this Guidance is designed to get shots in as many arms as possible. But it also might introduce headaches: one of the unanswered questions left by the Guidance is whether and how a contractor might be liable for a subcontractor’s noncompliance.
• Finally, this Guidance sets the minimum floor for COVID-19 compliance. It does not excuse noncompliance with any state or municipal requirements that are more protective; it does, however, supersede any less-restrictive state or local edicts relating to COVID-19.

With that in mind, let’s break down the three-part protocol set by the Guidance.

First, covered contractor employees must be fully vaccinated no later than December 8, 2021. After December 8, covered contractor employees must be fully vaccinated by the first day of the period of performance on a new contract and by the first day of the period of performance of an exercised option under a contract.

This requirement is broad: covered contractor employees are any full-time or part-time employee of a contractor working on (or in connection with) a contract, or working at any covered contractor workplace. This includes employees of federal contractors or subcontractors, even if they are not directly working under a federal contract. Essentially, if a contractor employee supports the performance on a covered contract–including by providing human resources, billing, or legal review services, then they’re likely required to get vaccinated.

The contractor, moreover, must review its employees’ documentation (like COVID-19 vaccination card) to ensure compliance. Of course, there are exceptions: if an employee is legally entitled to an exemption (say, because of a disability or sincerely-held religious belief), that employee might be entitled to an accommodation. We recommend that contractors speak with a local employment attorney to better understand the applicability of those exceptions and the required accommodations.

A couple more important points on the vaccine requirement:

• A prior COVID-19 infection does not negate the vaccine requirement. The Guidance bluntly states that “covered contractor employees who have had a prior COVID-19 infection are required to be vaccinated.”
• The vaccine requirement applies even if the covered contractor employee is working from their home. In that situation, however, the masking and social distancing requirements do not apply.

Second, covered contractors must ensure that all individuals (including employees and visitors) comply with CDC guidance for masking and physical distancing at any covered contractor workplace. Again, this requirement is broad–it applies at any location controlled by a contractor or subcontractor at which any employee working on or in connection with a covered contract is likely to be present during the period of performance.

According to the Guidance, an individual who is not fully vaccinated must wear a mask indoors and in certain outdoor settings, and must appropriately distance to the extent practicable. But even those who are fully vaccinated aren’t immune from masking requirements: even fully vaccinated individuals should mask in areas of high transmission.

Third, a contractor must designate a person (or persons) to coordinate implementation of the Guidance and workplace safety protocols. This person is tasked with ensuring that information relating to COVID-19 protocols is provided to covered employees as well as any visitors to workplaces. In same cases, the contractor must provide signage at workplaces that states the requirements in an understandable manner.

UPDATE: Federal contractors might be asking when this new protocol applies to their contracts. Here’s the timeline.

President Biden’s September 9 Executive Order requires the FAR to be updated by October 15, 2021, to implement (essentially) the Guidance. The implementation of this FAR provision is as follows:

• For ongoing contracts issued prior to October 15, the new FAR provision must be incorporated at the next option exercise or contract extension.
• Between October 15 and November 14, 2021, agencies must include the FAR provision in active solicitations. Agencies are also encouraged to incorporate the provision in contracts awarded this time period, but are not required to do so unless the solicitation was issued after October 15.
• On or after November 14, 2021, the provision must be incorporated in all covered contract awards.

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Beyond its terrible impacts on human and economic levels, COVID-19 continues to cause issues for federal contractors. And though aimed at ultimately stopping its spread, this new Guidance will create compliance issues for contractors.

One curious omission, though, is the lack of any stated penalties for failing to comply. That’s not state there aren’t any–beyond putting personnel at risk, the failure to comply could lead to terminated contracts or even suspension and debarment.

If you have any questions about this new Guidance or other issues relating to COVID-19 impacts, please reach out.