The Safer Federal Workforce Task Force on Sept. 24 issued highly anticipated guidance regarding federal contractor COVID-19 safety protocols, meeting the deadline President Biden set in his Sept. 9 executive order mandating vaccinations for federal contractors.
The executive order introduced a contract clause, defined covered contracts, set deadlines, and promised additional guidance to clarify questions about compliance. Now that the task force has issued the guidance, here is a closer look at key points:
- Vaccination deadline: Employees at covered contractors and subcontractors are required to be fully vaccinated against COVID-19 (defined as two weeks after the second dose) by Dec. 8, 2021.
- Covered employees: The mandate covers 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.
- Remote workers: An individual working on a covered contract from their residence is a covered contractor employee, even if they never work at a covered contractor workplace or a federal workplace. It’s not clear whether remote employees working “in connection with” a covered contract, such as finance personnel, will need to comply with the vaccination mandate.
- Accommodations: There is no testing opt-out. The only exemptions are for medical or religious reasons. An urgent, mission-critical need could warrant a temporary vaccine exemption but would require the individual to be fully vaccinated within 60 days of beginning work.
- Documentation: Official proof of vaccination, such as a vaccination card or medical record, is required. A personal attestation is insufficient.
- Leadership and accountability: Covered contractors must designate the person responsible for coordinating implementation and compliance with the guidance.
- Subcontractor flow down: The clause applies and must flow down to all tiers, except for subcontracts that are solely for the provision of products.
Who is impacted?
The broad scope of the Biden administration executive orders for the federal government, federal contractors and commercial businesses with over 100 employees suggests intent is for maximum vaccination rates, as opposed to targeting populations or circumstances.
While the federal contractor guidance applies to new contracts, extensions or options exercised on or after Oct. 15, 2021, agencies are strongly encouraged to incorporate the clause into existing contracts and contracts that are not covered by the executive order.
The vaccination mandate will likely apply to most, if not all, employees of a covered contractor. For an employee to be exempt, the contractor must “affirmatively determine” that a covered employee will have no interactions with noncovered employees in common areas, restrooms, parking garages and other facilities, which is difficult to determine and enforce.
This is evidenced by recent communication from L3Harris, which “is requiring all U.S.-based employees be fully vaccinated against COVID-19 by Dec. 8,” rather than attempting to segment the population. Boeing is following the same path, stating, “Boeing is requiring its U.S.-based employees to either show proof of vaccination or have an approved reasonable accommodation (based on a disability or sincerely held religious belief) by Dec. 8.”
What to consider?
As contractors prepare to implement this guidance, consider the following issues and questions:
Verification of vaccination status
- The task force requires that employees provide medical records, such as a vaccination card, to substantiate vaccination status.
- Contractors may have already polled employees for their vaccine status using some sort of honor system or attestation. What can be done if an employee provided an untruthful representation and does not have proof of vaccination?
- Will the medical record be reviewed and returned, or does the contractor intend to hold on to the medical record?
- Is a secure system set up to house the records?
- Under the Occupational Safety and Health Act, medical records must be kept for the duration of employment plus 30 years. Are record retention policies set up to accommodate that?
Additional federal and state requirements
- While federal contractors have their own executive order and task force, there are other requirements that may apply to them, such as the anticipated OSHA guidance for employers with 100 or more employees and state requirements.
- Do not defer compliance; the OSHA guidance could have a deadline prior to Dec. 8.
Segmenting the workforce
- The task force puts the obligation on the contractor to determine that employees not explicitly defined as covered within the order will never encounter a covered employee in order for them to not be considered a covered employee themselves. This is difficult and likely not feasible when employees share the same building, parking garage or campus.
- Ultimately, the guidance is written to prevent segmenting the workforce. Contractors should plan to have their entire workforce, except for very limited exceptions, vaccinated.
- Guidance has not been provided for how contractors should treat costs associated with the executive order. Therefore, contractors should follow their existing cost accounting practices for similar costs.
- Additional personnel and IT systems may be needed to track vaccination status and implement other requirements
- PTO for vaccines is not expressly required, however, the upcoming OSHA guidance may require it.
- Set up a project code for vaccine-related activities so they can easily be identified if the government provides additional cost allowability guidance.
- If paying severance to employees that refuse to get vaccinated, segregate that cost as potentially unallowable.
- Train subcontract administrators and buyers on flow-down requirements.
- Create contingency plans in the event an important subcontractor is not able to comply with the requirements.
What is next?
Pay attention to the emergency temporary standard set to be released by OSHA that may have more stringent requirements to consider and comply with in addition to those specific to federal contractors.
RSM Government Contracting Consulting Manager Jay Shafir contributed.