As promised, on September 24, 2021, the Safer Federal Workforce Task Force issued Guidance for Federal Contractors and Subcontractors about the implementation of President Biden’s Executive Order 14042, which imposed a vaccine mandate on many federal contractors. Bottom line up front, as the military likes to say, Uncle Sam wants its federal contractors to get vaccinated and, generally speaking, that requirement includes contractor employees not even working on government contracts, if they work close to contractor employees who do.

Background

As we reported in August, the task force issued Model Safety Principles for federal agencies, which required federal contractors who were not vaccinated against COVID-19, or those declining to provide their vaccination status, to wear masks and social-distance inside federal buildings, regardless of community transmission levels. There was also a testing requirement. Fully vaccinated contractors were largely exempt from these requirements, although they still had to wear masks in federal buildings in areas of high or substantial transmission.

Then, on September 9, 2021, President Biden issued the Executive Order, which directed federal agencies to begin amending solicitations and contracts to include a COVID-19 vaccination requirement for federal contractors and subcontractors. The Executive Order applies broadly to services, construction, leasehold interest, or concessions contracts performed in the United States and its outlying areas, and valued above the simplified acquisition threshold, now generally set at $250,000. The Executive Order is silent as to whether it applies to contracts solely for products. Subcontracts solely for the provision of products are, however, specifically excluded. The new contract clause mandated by the Executive Order, which is not yet written, will require contractors to comply with task force guidance and “shall apply to any workplace locations . . . in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.” The term “contract-like instruments” encompasses a broad array of contract types, as defined in a July 2021 Department of Labor Proposed Rule to raise federal contractor minimum wages.

The Executive Order directs the task force to provide guidance regarding “definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions” to that guidance. That guidance is now here.

What does the guidance say?

The guidance is broad and states that workplace safety protocols “will apply to all covered contractor employees, including contractor or subcontractor employees in covered contractor workplaces who are not working on a Federal Government contract or contract-like instrument” (emphasis added).

One provision of the guidance that is getting substantial media attention is the requirement that “[c]overed contractor employees must be fully vaccinated no later than December 8, 2021,” but, as discussed below, the definition of “covered contract” may make this deadline more flexible for some contractors.

A “covered contract,” as defined in the guidance, is one “that includes the clause” required by the Executive Order. The Executive Order, however, states that the requirement will apply to new solicitations and new contracts entered into on or after October 15, 2021. It will also apply to contracts that will be extended, renewed, or have an option exercised on or after that date. Because of the breadth of the definition of “contract-like instrument[s],” federal agencies may view the issuance of task or delivery orders under multiple-award indefinite delivery, indefinite quantity (IDIQ) contracts as triggering the requirement.

The guidance states that agencies must incorporate the contract clause into contracts awarded on or after November 14, 2021, and are encouraged, but not generally required, to include the contract clause in contracts awarded between October 15 and November 14, 2021. For existing contracts and for solicitations issued before the effective dates of the Executive Order, agencies are “strongly encouraged” to ensure that the safety protocols required are consistent with the requirements of the Executive Order. While the guidance is unclear on precisely what action is required by agencies on such contracts, contractors working on an existing contract may not face an implementation requirement unless and until the contracting agency amends the contract in some way. Contractors with awards after November 14, 2021, on the other hand, will.

A “covered contractor employee” is defined as “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” (emphasis added).

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” (emphasis added). An employee’s residence is specifically excluded from the definition.

So, for contractors with existing contracts and solicitations that do not meet the definition of a “covered contract,” the December 8, 2021, vaccination deadline should not apply until such time as the contractor enters into a “covered contract” or has an existing contract amended, which will include the contract clause. However, it is unclear whether a contractor will be permitted to bid a “covered contract” after December 8, 2021, without achieving vaccine compliance, so ignoring the deadline may have consequences to securing future work. Additionally, as you can see, the definition of what is “covered” by the Executive Order is broad and somewhat ambiguous (and is subject to change as the Labor Department’s Proposed Rule on Federal Contractor minimum wages becomes a Final Rule), so to avoid allegations of non-compliance, federal contractors may be wise to take a strict approach to satisfying the new vaccine requirements.

The FAQs section

The guidance also helpfully includes FAQs. We summarize the most relevant ones here:

• Remote employees – While a covered contractor employee who works at home need not wear a mask or social-distance, that employee must still comply with the vaccination requirements.

• Workplaces with a mix of employees – If a covered contractor employee works at a building or site where non-covered employees work, the entire building and/or site is considered a covered contractor workplace, which means that all the employees in the building are considered covered contractor employees and, thus, subject to the vaccination requirement — “unless a covered contractor can affirmatively determine that none of its employees in or at one building, site, or facility will come into contact with a covered contractor employee during the period of performance of a covered contract.” According to the guidance, this “would include affirmatively determining that there will be no interactions between covered contractor employees and non-covered contractor employees in those locations during the period of performance on 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.”

• Work “in connection with” a covered contract – An employee is a covered contractor employee, and thus subject to the vaccination requirement, even if not working on a covered contract when that person performs “duties necessary to the performance of the covered contract, but [is] not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review” because that work is “in connection with” a covered contract.

• The guidance applies to outdoor work locations.

• The contract clause supersedes contrary state or local rules.

What is the takeaway?

The federal government obviously wants to get as many people in the country vaccinated as possible and is using the broad reach of federal contracting to help achieve that goal. Given the contentious nature of the current political debate over COVID-19 vaccines and public health requirements, contractors will likely face a challenge with implementing the requirements of the Executive Order when its requirements are added to their contracts, because failure to implement the requirement could result in a government claim for breach or worse, if a qui tam relator brings a False Claims Act action that alleges a violation of an implied certification of compliance with regulations. Perhaps more frustrating, because the Executive Order states that the contract clause will require adherence to task force guidance, and the guidance may change over time, the exact requirements are likely to evolve. Compliance will, therefore, require continuous attention to this issue. In the near term, implementation will focus on new contracts and solicitations first, so contractors should likewise focus their compliance efforts on this area.