As instructed, the Safer Federal Workforce Task Force has modified and updated its guidance on the implementation of Executive Order 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors.  Most recently, the Task Force released new FAQs providing additional guidance for contractors working to implement the requirements of the Executive Order.  A number of the FAQs significantly expand the vaccination requirement to employees and workplaces of companies “affiliated” with federal contractors, and others allow more leeway in enforcement by contracting agencies and options for unvaccinated employees to continue working. Others provide guidance for addressing employees who refuse to be vaccinated or are in the process of requesting an accommodation.  Importantly, during an informational webinar hosted today by the Administration, it was emphasized that contractors’ good faith efforts towards compliance will be acknowledged.

Expanded Coverage

The new FAQs addressing expand coverage based on corporate affiliation are located under the “Scope and Applicability” section of the Taskforce online FAQs and read as follows:

• NEW Q: If a corporate affiliate of a covered contractor does not otherwise qualify as a covered contractor, are the employees of that affiliate considered covered contractor employees subject to COVID-19 workplace safety protocols for Federal contractors established through Task Force Guidance?

• A: For purposes of Task Force Guidance, business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly: (i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.  Indicia of control include, but are not limited to, interlocking management or ownership, identity of interests among family members, shared facilities and equipment, or common use of employees. An employee of a corporate affiliate of a covered contractor is considered a covered contractor employee if the employee performs work at a covered contractor workplace.

While this FAQ appears to give a nod to OFCCP’s “single entity” test, it appears to be broader and more inclusive and highlights the fact that the analysis for coverage of this executive order differs from that used to establish affirmative action obligations and corresponding OFCCP jurisdiction.

This expanded view is also being applied to covered contractor workplaces:

• NEW Q: If the workplace where a covered contractor’s employees perform work on or in connection with a covered contract is a location owned, leased, or otherwise controlled by a corporate affiliate of a covered contractor that does not otherwise qualify as a covered contractor under Task Force guidance, is the workplace considered a covered contractor workplace?

• A: … If 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 at a workplace controlled by a corporate affiliate of that covered contractor, that workplace is considered a covered contractor workplace.

This FAQ covers at least two scenarios.  If a covered contractor shares a workplace/building with an affiliated company, the employees of the affiliate are also subject to the Guidance.  Moreover, if a covered employee of a federal contractor visits a facility of an affiliate – or is even likely to be present – the employees of the affiliate at that facility are also subject to the Guidance.  These FAQs appear contradictory to definitions in the Guidance itself with respect to covered workers and workplaces, which state specifically that the touchstone of employee and workplace location coverage is the entity holding a covered government contract.

Other new FAQs in the Vaccination and Safety Protocols section are more helpful by offering a softer enforcement approach, as the below reflect.

• NEW Q: Do all requests for accommodation need to be resolved by the covered contractor by the time that covered contractor employees begin work on a covered contract or at a covered workplace?

• A: No. The covered contractor may still be reviewing requests for accommodation as of the time that covered contractor employees begin work on a covered contract or at a covered workplace. While accommodation requests are pending, the covered contractor must require a covered contractor employee with a pending accommodation request to follow workplace safety protocols for individuals who are not fully vaccinated as specified in the Task Force Guidance for Federal Contractors and Subcontractors.

• NEW Q: What steps should an agency take if a covered contractor does not comply with the requirements in the Task Force’s Guidance for Federal Contractors and Subcontractors?

• A: Covered contractors are expected to comply with all requirements set forth in their contract. Where covered contractors are working in good faith and encounter challenges with compliance with COVID-19 workplace safety protocols, the agency contracting officer should work with them to address these challenges. If a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken.

Regarding unvaccinated employees the new FAQs provide additional guidance around compliance:

• NEW Q: What steps should a covered contractor take if a covered contractor employee refuses to be vaccinated?

• A: A covered contractor should determine the appropriate means of enforcement with respect to its employee at a covered contractor workplace who refuses to be vaccinated and has not been provided, or does not have a pending request for, an accommodation. This may include the covered contractor using its usual processes for enforcement of workplace policies, such as those addressed in the contractor’s employee handbook or collective bargaining agreements.  One model for enforcement among employees with respect to non-compliance with a vaccination requirement is that being followed by Federal agencies. Guidance for Federal agencies is to utilize an enforcement policy that encourages compliance, including through a limited period of counseling and education, followed by additional disciplinary measures if necessary. Removal occurs only after continued noncompliance. Guidance for Federal agencies is that employees should not be placed on administrative leave while the agency is pursuing an adverse action for refusal to be vaccinated but will be required to follow safety protocols for employees who are not fully vaccinated when reporting to agency worksites. During the time period of enforcement, the covered contractor must ensure the covered contractor employee at a covered contractor workplace is following all workplace safety protocols for individuals who are not fully vaccinated.  An agency may determine that a covered contractor employee who refuses to be vaccinated in accordance with a contractual requirement pursuant to EO 14042 will be denied entry to a Federal workplace, consistent with the agency’s workplace safety protocols.

• NEW Q: When a covered contractor employee is not vaccinated because a covered contractor has provided the employee with an accommodation, what workplace safety protocols must the employee follow while in a Federal workplace?

• A: The Federal agency will determine the workplace safety protocols that individuals who are not fully vaccinated must follow while in a Federal workplace. As noted in Task Force guidance, in most circumstances individuals who are not fully vaccinated need to follow applicable masking, physical distancing, and testing protocols. However, there may be circumstances in which an agency determines that the nature of a covered contractor employee’s job responsibilities at a Federal workplace, or the location of their work at a Federal workplace, requires heightened safety protocols. Further, in some cases, an agency may determine that the nature of a covered contractor employee’s responsibilities at a Federal workplace are such that no safety protocol other than vaccination is adequate—in that case, covered contractor employees who are not fully vaccinated would be unable to perform the requisite work at the Federal workplace. Such circumstances do not relieve the contractor from meeting all contractual requirements.  In order for agencies to assess appropriate safety measures for contractor employees in Federal workplaces, contractors subject to a contractual requirement for maintaining COVID-19 workplace safety protocols pursuant to Executive Order 14042 should generally notify their contracting officers when one of their employees who works onsite at a Federal workplace has received an exception to the requirement to be fully vaccinated.

Along these lines, we suggest that covered federal contractors – including those who have received a request to modify an existing contract to include the clause – proactively contact their contracting officers regarding challenges they face in implementing the vaccine requirement.  As reflected in this FAQ, that may allow the contracting officer to provide some leeway in compliance.