The new requirements go into effect on the later of December 8, 2021, or the first day of the period of performance on a newly awarded covered contract, an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract. The Executive Order calls for federal agencies to include a clause incorporating the vaccine mandate requirements in any new contracts and contract-like instruments, contract options, and extensions or renewals of existing contracts that are effective on or after October 15, 2021. Covered contracts do not include grants and contracts or subcontracts valued at or below the simplified acquisition threshold (currently $250,000), but the Guidance strongly encourages agencies to incorporate a clause requiring compliance.
Once a contractor or subcontractor is a party to a “covered contract,” the vaccine mandate the contractor must adopt is quite far-reaching. The contractor must require all employees in the United States to provide or show proof of full vaccination against COVID-19 except for:
- Employees who are legally entitled to an exemption as a result of a disability or sincerely held religious belief,
- Teleworking employees who work exclusively at home and do not work on or in connection with a covered contract, and
- Employees who do not work on or in connection with a covered contract and who work at a contractor facility in which no other employee with whom they may come into contact works on or in connection with a covered contract at any time during the period of that covered contract.
Employees in the second and third categories are not considered “covered contractor employees.” With respect to the second and third categories, the Guidance states that contractor employees should be considered as working “in connection with” a covered contract if they perform duties necessary to the performance of the covered contract, even if they are not directly engaged in performing the specific work required by the covered contract. This means that “covered contractor employees” may, for example, include employees who work in human resources, billing or the legal department.
Covered contractor employees who work at a “covered contractor workplace” or a federal government site will have to be fully vaccinated—unless granted a legally required exemption—and must also comply with published CDC guidance for masking and physical distancing. Currently, CDC guidance calls for even fully vaccinated individuals to wear masks indoors in areas of substantial or high community transmission of COVID-19, and any individual who is not fully vaccinated must both wear a mask indoors and physically distance from others. Covered contractors may provide for exceptions to mask wearing and/or physical distancing requirements consistent with CDC guidelines, such as when an individual is alone in an office with floor to ceiling walls and a closed door, or for a limited time when eating or drinking and maintaining appropriate distancing. Employees working from home for a covered contractor on or in connection with a covered contract must also be vaccinated, but they are not subject to masking or social distancing requirements that may apply in covered contractor locations or on federal government sites.
A “covered contractor workplace” is defined as “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.” According to the Guidance, the entirety of any building or facility at which even a single covered contractor employee works is deemed a “covered contractor workplace” unless the contractor can affirmatively determine that none of its employees on another floor or in separate areas of the building will come into contact with a covered contractor employee during the period of performance of a covered contract, “including interactions through use of common areas such as lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.”
The Guidance also requires that covered contractors ensure that all individuals, including visitors, comply with CDC guidance for masking and physical distancing at a covered contractor workplace. While visitors need not provide proof of vaccination, contractors must post signage at entrances to covered contractor workplaces providing information on safety protocols for fully vaccinated and not fully vaccinated individuals, including masking and physical distancing rules.
With respect to covered employees, federal contractors cannot rely on self-attestation of vaccine status. Rather, employees must “show or provide” one of the following documents:
- a copy of the record of immunization from a health care provider or pharmacy,
- a copy of the COVID-19 Vaccination Record Card,
- a copy of medical records documenting the vaccination,
- a copy of immunization records from a public health or State immunization information system,
- or a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine.
Either paper or digital copies of such records, including photographs, scanned images, or PDFs, are acceptable.
Finally, for covered contractors that have a covered contractor workplace, the Guidance requires that the covered contractor designate one or more coordinator(s) for COVID-19 workplace safety efforts. Covered contractors must on at least a weekly basis check the CDC COVID-19 Data Tracker County View website for community transmission information in all areas where they have a covered contractor workplace to determine proper workplace safety protocols, and they may not reduce the level of safety protocols until the level of community transmission remains below a substantial level for at least two consecutive weeks.
The Guidance states that the requirements must be incorporated into existing contracts, awarded prior to October 15, 2021, when an option is exercised or an extension is made. The requirements will be included in new contracts that are awarded after November 14, 2021. For contracts and solicitations issued between October 15, 2021, and November 14, 2021, agencies are required to include the requirements in solicitations and are encouraged, but not required, to include the requirements in contracts awarded during this time period. Contractors with a federal contract or subcontract incorporating these requirements must flow down the requirements to the next lower-tier subcontractor(s). The Guidance states that the FAR Council will conduct a rulemaking to amend the FAR, and by October 8, 2021, a new FAR clause is to be issued that is expected to require covered contractors performing under FAR-based contracts to comply with this Guidance for contractor and subcontractor workplace locations.
The FAR rulemaking may resolve some ambiguity in the Guidance over whether the vaccine mandate will apply to prime contracts that are solely for products, rather than including a services element. The Guidance states that the requirements in the Executive Order will “apply to subcontractors at all tiers, except for subcontracts solely for the provision of products.” As to prime contracts for products, however, the Guidance includes statements that could be read as in tension with each other. On the one hand, the Guidance states that “Consistent with applicable law, agencies are strongly encouraged to incorporate a clause requiring compliance with this Guidance into contracts that are not covered or directly addressed by the order because the contract is under the Simplified Acquisition Threshold as defined in section 2.101 of the FAR or is a contract or subcontract for the manufacturing of products” (emphasis added). On the other hand, the definition of contract in the Guidance contains no exclusion for contracts for products and instead states that “The term contract shall be interpreted broadly as to include, but not be limited to, any contract within the definition provided in the FAR at 48 CFR chapter 1 or applicable Federal statutes. This definition includes, but is not limited to, any contract that may be covered under any Federal procurement statute.”
Contractors should look to whether their contracts include a clause incorporating the vaccine mandate requirement. The Guidance’s definition of a covered contract is short and straightforward: “Covered contract—means any contract or contract-like instrument that includes the clause described in Section 2(a) of the order.”
The requirements of the Executive Order supersede any contrary state or local law or ordinance but do not excuse noncompliance with any applicable state law or municipal ordinance establishing more protective workplace safety protocols. Contractors would be prudent to start planning now for how to implement their vaccine policies in order to reach full compliance by the date of applicability to their workforces. Contractors are also advised to consult with legal counsel in developing their policy documents and their processes for addressing requests for medical or religious exemptions.