Guidance for Federal Contractors Under President Biden’s COVID-19 Executive Order

President Biden recently issued an Executive Order (Executive Order 14042) requiring covered federal contractors to mandate that their employees are fully vaccinated against COVID‑19. On September 24, 2021, the White House’s Safer Federal Workforce Task Force issued guidance (Guidance) explaining the vaccination requirements and other COVID-19 related safety measures for federal prime contractors and subcontractors pursuant to the Executive Order. The Guidance requires “covered contractors” to ensure that “covered contractor employees” are fully vaccinated unless the employee qualifies for a religious or medical exemption. A copy of the Guidance is available here.

What Contracts are Covered and Excluded?

The Executive Order addresses primarily service contracts and includes within its scope new contracts, new solicitations for a contract, and extensions, renewals, or exercised options of existing contracts that involve (1) services, construction, or a leasehold interest in real property, (2) services provided under the Service Contract Act, (3) concessions, or (4) contracts offering services involving federal land and related to federal employees, their dependents, or the general public.

Covered contracts specifically exclude grants; contracts with Indian Tribes under the Indian Self-Determination and Education Assistance Act; contracts valued at or below the Simplified Acquisition Threshold (currently, $250,000); and subcontracts for the manufacturing of products.

Deviation Clause for Civilian Agencies

On September 30, 2021, the Civilian Agency Acquisition Council (CAAC) released guidance prescribing a class deviation from the Federal Acquisition Regulations (FAR). This deviation will allow civilian agencies administering government contracts to begin inserting the prescribed COVID-19 vaccination clause into these contracts as allowed by the text of the Executive Order. According to the CAAC, each civilian agency may “choose” to adopt the suggested deviation clause, with or without modification. Thus, each agency may choose to adopt different language than the deviation for their contracts until the FAR Council adopts a standard clause.

When Do the New Requirements Go Into Effect?

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 December 8 deadline means contractors must have received their final shot at least two weeks beforehand.

Additional requirements include:

• A mandatory flow down clause requiring compliance with the Guidance;
• Mask and physical distancing rules at covered contractor worksites (including for employees and third parties); and
• A requirement that contractors designate a person or persons to coordinate COVID-19 workplace safety efforts at their workplaces.

Which Employers Are Covered?

The Guidance and Executive Order apply to most prime federal contractors and subcontractors, where that entity either (a) enters into a new contract on or after November 14 to provide services to the federal government, (b) enters into such a contract between October 15 and November 13 where the agency elects to apply the obligations, or (c) after October 15, extends or renews a contract for services to the federal government.

For a contractor or subcontractor to be subject to the vaccine mandate, a covered contract (or a “contract-like” instrument) must be at least partially performed in the United States, and must be: (1) for services, construction or a leasehold interest in real property; (2) for services covered by the Service Contract Act; (3) for concessions; or (4) entered into with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents or the general public.

Which Employees Are Covered?

The requirements apply to a broad range of employees of covered contractors and subcontractors. The vaccination requirements apply to any employee of a covered entity so long as the employee is working full-time or part-time either (a) in connection with a covered contract, or (b) at a covered contractor workplace (includes almost any location controlled by the contractor that has any connection to a covered contract). Employees who work “in connection with” a covered contract include those who perform duties necessary to the performance of the covered contract, but who are not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review. Moreover, the vaccine mandate applies to contractor facilities where government contracting work is performed.

May a Covered Employer Allow Employees to Undergo Weekly Testing Instead of Being Vaccinated?

Generally, no. The Guidance and Executive Order do not allow covered employers to avoid mandating vaccinations and generally do not provide for testing alternatives. Contractor employees may request exemptions for a sincerely held religious belief, practice or observance or a medical condition that affects their ability to receive a vaccine. If an employee asserts an objection based on a disability, medical condition, or sincerely held religious belief, practice or observance, the covered contractor must engage in the interactive process to determine what, if any, accommodation may be offered. Prior COVID-19 infections and antibody tests are not acceptable substitutes for the vaccine.

Are there Social Distancing and Masking Requirements for Employees and Visitors?

Yes. Covered employees and site visitors also must follow Centers for Disease and Prevention (CDC) guidance for masking and physical distancing. The masking and physical distancing requirements are partially dependent on the current level of community transmission at a given location.

• Covered employers will need to check the CDC COVID-19 Data Tracker County View website at least weekly to monitor the level of community transmission for each covered contractor workplace to satisfy these requirements.

Does the Vaccine Requirement Apply to Remote Workers?

Yes. The Guidance creates no exceptions for remote employees to the vaccination requirement. Thus, a covered contractor must require employees working from home under covered contracts to be vaccinated. However, because employees’ homes are not covered contractor workplaces, such remote employees are not required to follow the additional masking and social distancing requirements when working from home.

Must Covered Employees Provide Proof of Vaccination?

Yes. Covered employers must review their employees’ vaccination documents to demonstrate compliance with the vaccine mandate. Acceptable proof includes a CDC Vaccination Record Card, immunization records from a health care provider or pharmacy, medical records or state or public health immunization records.

• Notably, employee self-attestations are not sufficient proof of vaccination.

What Happens When State or Local Laws Are Inconsistent with the Federal Mandate?

The Guidance overrides any state or local laws that would prohibit compliance; however, “more protective” state or local COVID-19 laws would continue to apply.

What Questions Remain Unanswered?

The Executive Order and Guidance do not specify the exact penalties for employer noncompliance. For instance, it is not clear whether noncompliance would affect a contractor’s past performance ratings or whether the government could terminate the contract or alter the amount of payment for a contractor’s failure to comply with contract requirements.

Covered employers should take steps now to address these requirements. For up-to-date guidance on how these developments impact your organization, and for counseling on other timely pandemic-related management issues, please contact your local Quarles & Brady attorney or:

• Sarah Belger: (202) 372-9511 / sarah.belger@quarles.com
• Hans Riede: (202) 372-9529 / hans.riede@quarles.com