On September 24, 2021, the Safer Federal Workforce Task Force issued COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. This guidance is a result of President Biden’s Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, which is part of Biden’s COVID-19 action plan, Path Out of the Pandemic.1 The Executive Order directs executive departments and agencies to ensure that federal contracts include a clause specifying that the contractor and subcontractor will comply with all guidance issued by the task force.
According to the task force guidance, federal contractors and subcontractors must:
Lawsuits have already been filed against the Biden administration challenging the federal contractor COVID-19 vaccine mandate.
The task force guidance generally applies to all employees working at the federal contractor (including those not involved with the contract and those working from home); however, it does not apply to those who work outside the United States. It also applies to all subcontractors, except for those solely providing products.
All employees (except those with an accommodation exemption) must be fully vaccinated by December 8, 2021.
The employee must provide proof of vaccination. Acceptable forms of documentation (including digital copies) include:
A recent antibody test or an employee’s attestation of vaccination is not an acceptable form of proof. Individuals who have had COVID-19 must still get vaccinated.
Covered contractors must ensure that all employees and visitors comply with published CDC guidance for masking and physical distancing at the workplace. The rules for masking (including exceptions to the general rule) may depend on the community transmission rate in the federal contractor’s or subcontractor’s area as well as the setup of the workplace; specific rules should be discussed with qualified legal counsel.
A federal contractor may be required to provide an accommodation to employees, regardless of where they work, who communicate to the employer that they are not vaccinated, or cannot wear a mask, because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice or observance. The contractor would need to review and consider what, if any, accommodation it must offer.
The guidance supersedes any state or local law or ordinance; however, covered contractors must still comply with any state law or municipal ordinance workplace safety protocols that are more protective than those under the task force guidance. In addition, contractors must comply with the task force guidance regardless of whether they are subject to other workplace safety standards (such as the Occupational Safety and Health Administration guidance on the COVID-19 vaccination mandate for employers with 100 or more employees, which is expected in the coming weeks).
For federal contracts awarded prior to October 15, 2021, where performance is ongoing, the requirements must be incorporated at the point at which an option is exercised or an extension is made.
The requirements must be incorporated into contracts awarded on or after November 14, 2021. Between October 15, 2021, and November 14, 2021, agencies must include the clause in the solicitation and are encouraged to include it in contracts awarded during this time period; however, they are not required to do so unless the contract solicitation was issued on or after October 15, 2021.
1 See “President Biden’s new COVID-19 vaccine plan will affect employers,” Insider, September 2021.
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