Yesterday, the Safer Workforce Taskforce (Task Force) publicized a slew of new FAQs with one set containing surprising information regarding federal contractors.  To be clear, this is not the guidance contractors are waiting for with respect to implementation of President Biden’s Executive Order 14042 – Ensuring Adequate COVID Safety Protocols for Federal Contractors.  With that said, the new FAQs include an FAQ encouraging federal agencies to include vaccine requirements into contracts that are NOT covered by the President’s Executive Order:

• Q: Can agencies incorporate vaccination requirements into contracts that are not covered by Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Contractors)?

• A: Yes. Agencies are strongly encouraged to incorporate vaccination requirements into contracts that are not covered by Executive Order 14042, consistent with applicable law. This might include, for example, incorporating vaccination requirements into contracts in advance of when they are otherwise required by the Executive Order or incorporating requirements into contracts that are not covered by the Executive Order, such as contracts under the Simplified Acquisition Threshold. Implementation of such additional requirements should generally follow the Safer Federal Workforce Task Force’s guidance for implementing the vaccination requirement in Executive Order 14042.

This direction seems to “authorize” agencies to significantly expand the requirements of the Executive Order and undermine its express exclusion for subcontracts solely for the provision of products and, essentially, to expand coverage to any federal contract.  And, while it is unclear whether the Executive Order is limited to workers and employees working “on or in connection with” covered federal contracts, this FAQ might also be read to allow federal agencies to require all federal contractor employees to comply with vaccine requirements.

Given this new wrinkle, all federal contractors – and not those explicitly covered by the Executive Order – will need to review closely any new (or renewed) contracts for vaccine and testing clauses and provisions. 

Adding to the previous guidance for federal contractor employees working on-site at federal sites, another FAQ states that such on-site employees who are not fully vaccinated or refuse to disclose their vaccine status must provide proof of a negative COVID test no older than three days.  However, “if a contractor employee is regularly tested pursuant to an agency testing program, then they do not need to provide proof of a negative COVID-19 test from no later than the previous 3 days prior to entry to a federal building unless required to by the agency testing program.”

The Task Force has also provided an OMB-approved Certification of Vaccination form for on-site federal contractor employees.

[A]gencies will direct onsite contractor employees to complete the Certification of Vaccination form and keep it with them during their time on federal premises—they may be asked to show the form upon entry to a federal building or federally controlled indoor worksite and to a federal employee who oversees their work

[T]he agency will not maintain Certification of Vaccination forms from contractor employees at this time unless an agency has a system of records notice that covers its collection of this information from onsite contractor employees. Any such collection, storage, or maintenance of the attestation disclosure forms may implicate the Privacy Act and Paperwork Reduction Act.

Agencies may also invoke vaccine and testing requirements prior to a contractual requirement for on-site federal employees.

Prior to having a contractual requirement for its employees to be vaccinated and if authorized and consistent with the terms of the contract, an agency may work with a contractor to facilitate compliance by its onsite employees with the agency’s safety protocols, such as by having the company attest that all onsite contractor employees are fully vaccinated.

Federal contractor vaccine requirement information and guidance is evolving quickly, so please stay tuned for additional blogs.