Burr & Forman

09.27.2021   |   Articles / Publications, COVID-19

COVID-19 Vaccine Guidance for Federal Contractors

On September 24, 2021, the Safer Federal Workforce Task Force released guidance detailing COVID-19 vaccination and other pandemic-related workplace safety requirements for federal contractors in accordance with the Executive Order issued by President Biden on September 9, 2021. The Executive Order itself broadly outlined which contractors were covered by the mandate and discussed the process for implementation, but contained few specific details of the requirements.  The guidance issued today answers many of the questions raised by federal contractors about the requirements, but we expect additional information to be released by the Task Force in the coming weeks.

What does the guidance require?

Covered federal contractors are responsible for ensuring that all covered full-time or part-time contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. As discussed below, the guidance also requires masking and physical distance in compliance with Centers for Disease Control guidelines at covered contractor workplaces. A covered contractor workplace is a location the contractor controls at which an employee of a covered contractor is likely to be present at any point during the period of performance.

Which federal contractors have to comply with the mandate?

Covered federal contractors are those with contract language mandating adherence with the guidance. Agencies will be required to incorporate this language into renewals, extensions, or exercised options of existing contracts, as well as new solicitations and contracts issued, that are above the simplified acquisition threshold (currently $250,000) by October 15, 2021. Though not required, it is likely that the government will encourage modifications of long-term contracts to include the new clause.

If I am a prime contractor, do I have any special obligations?

Yes, prime contractors must ensure that compliance clauses are incorporated into its contracts with subcontractors except those solely providing products.

I am a small business. Do I still have to comply?

Yes, all covered federal contractors and subcontractors must comply regardless of business size.

What is the deadline for compliance?

For covered federal contractors with active contracts, employees must be fully vaccinated by December 8, 2021.

For covered federal contractors awarded new contracts (or options, renewals, or extensions), employees must be fully vaccinated by the first day of performance under the new contract, option, renewal, or extension.

Are there any exceptions to this deadline?

If a federal agency has an urgent need for work to be performed without there being time to fully vaccinate the contractor’s employees, then a federal contractor may seek approval for an exception. This exception will allow work to begin, but federal contractors will need to comply with vaccine mandates within 60 days. During the 60-day exception period, unvaccinated employees must comply with masking and physical distancing requirements.

Does the mandate apply to all employees of the federal contractor?

Employees who work from home must be fully vaccinated, but do not have to comply with the masking or physical distancing requirements discussed below.  Employees who work outside must also be vaccinated.

However, the mandate does not apply to any employees who work outside of the United States or its outlying areas.

Do we have to verify employee’s vaccination documents?

Yes, covered federal contractors must review employees’ documentation to prove vaccination status.

What verification documents are acceptable?

 Covered federal contractors must require employees provide one of the following documents:

  • a copy of the record of immunization from a health care provider or pharmacy;
  • a copy of the employee’s COVID-19 Vaccination Record Card;
  • a copy of immunization records from a public health or State immunization information system; or
  • a copy of any other official documentation verifying vaccination that includes all of the following information:
    • vaccine name
    • date(s) of administration;
    • name of the health care professional or clinic site who administered the vaccine.

Employers can accept digital copies of these records. For example, photographs, scanned documents, or PDFs are acceptable forms of proof.

What should a government contractor do if an employee has lost or does not have a copy of the required documentation?

Employees should be directed to obtain new copies or verification of their vaccination status. Employees should be able to obtain new copies of their vaccination card from their vaccination provider. If the vaccination provider is no longer operating, employees may contact their State or local health department’s immunization information system (IIS) for assistance.

Can we accept a recent antibody test from an employee to prove vaccination status?

No. Only the forms of vaccination documentation listed above may be accepted.

If an employee has previously had COVID-19, are they still required to be vaccinated?

Yes, employees are required to be vaccinated regardless of prior infection.

Do we still have to offer accommodations to unvaccinated individuals?

Yes, covered federal contractors will still need to accommodate employees with closely held religious beliefs or ADA-qualifying disabilities that inhibit their ability to receive a COVID-19 vaccine.

Accommodations must also be offered to employees who are unable to wear masks due to an ADA-qualifying disability or closely held religious belief.

If a joint employment situation between the covered federal contractor and the agency exists, the contractor should coordinate with the contracting officer or the contraction officer’s representative on accommodating the individual.

Do covered federal contractors still have to enforce other measures such as masking or social distancing?

Yes, there are differing requirements based on the location of the worksite.  The rules state that covered contractors must ensure that all individuals and visitors (regardless of vaccination status) comply with the published CDC guidance for masking at workplaces in areas of high or substantial community transmission. In areas with low or moderate community transmission, fully vaccinated individuals do not need to wear masks.

Fully vaccinated individuals do not need to practice social distancing, regardless of the level of community transmission.

Individuals who are not fully vaccinated must wear a mask indoors and in crowded outdoor settings or outdoor settings that require sustained close contact with other individuals who are not fully vaccinated regardless of the level of community transmission. These individuals should also maintain social distancing when possible.

When masks are required, the rules do require that masks be worn over the nose and mouth.

How do I know the transmission levels at my worksite?

The CDC website provides this information at https://covid.cdc.gov/covid-data-tracker/​#county-​view.

Are there any exceptions to the masking requirements?

Yes, masks will not be required if an individual who is not fully vaccinated is alone in an office with floor to ceiling walls and a closed door, in brief times when an individual is eating or drinking so long as physical distance of at least 6 feet is maintained, or if the individual obtains an accommodation pursuant to an ADA-qualifying disability or a sincerely held religious belief.

Covered federal contractors may also allow exceptions for employees who are engaging in activities in which masks may get wet, during high-intensity activities, or when wearing a mask would create a risk to workplace health, safety, or job duty as determined by a workplace risk assessment. These exceptions must be approved in writing by an authorized representative of the covered federal contractor.

Additionally, individuals may be asked to lower their masks for security identification purposes.

What is a workplace risk assessment?

OSHA has outlined workplace risk assessments and how to undergo such assessments on their website at https://www.osha.gov/safety-management.

How are covered federal contractors expected to ensure compliance?

Covered federal contractors must designate a person or persons to coordinate the implementation of and compliance with the guidance and the other corresponding safety protocols (such as masking). These individuals are responsible for ensuring compliance with mask and social distancing requirements and obtaining the vaccination documentation. Additionally, these individuals must ensure that this information is presented to covered employees (explained below).

Are there any notice requirements?

Yes, covered federal contractors must post signs at entrances to covered workplaces that provides the information on safety protocols. These protocols must define the requirements for vaccinated and not fully vaccinated individuals, including any masking or social distancing requirements.

The designated individual is responsible for sharing the necessary information. In addition to postings at entrances, information can be presented via email, websites, memoranda, flyers, postings at job sites, or other means.

Do covered federal contractors have to provide onsite vaccinations?

While federal contractors may choose to provide onsite vaccinations, the guidance doesn’t require it. At a minimum, covered federal contractors must ensure that employees are aware of convenient vaccination opportunities.

The full text version of the Task Force Guidance can be found here.

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