Federal Contractor Vaccine Mandate

On September 9, 2021, President Biden issued two Executive Orders under the administration’s “Path Out of the Pandemic Plan.” One of those orders added COVID-19 vaccination requirements for nearly all federal contractors.

The administration also promised guidance from the Safer Federal Workforce Task Force. That guidance was issued September 24, 2021.

Federal contracts and sub-contracts will be required to contain a clause that requires the parties to comply with the safety guidelines, which includes three requirements:

• Requiring all covered employees to be vaccinated by December 8, 2021 (unless the employee is permitted an accommodation)
• Masking and physical distancing at covered worksites
• Requiring contractors to appoint a COVID-19 safety person at their workplace

When do the new requirements have to be included in the contracts?

The guidance also includes a question-and-answer section. According to Q&A 12, every federal contract from November 14, 2021, and onward must include the above requirements in the contract. For contracts made between October 15 and November 14, federal agencies will include the requirements in the solicitation and are encouraged to include the requirements in all contracts awarded. For contracts awarded before October 15, the requirements will be included in the contract only when an option is exercised or the contract extends.

Does the guidance apply to all federal contracts?

The guidance also helps clarify what contracts and employees are subject to the order. The guidance lists contracts or “contract-like instruments” as subject to the Executive Order. Purchase orders, basic ordering agreements, letter agreements, and awards and notices of awards are included instruments that fall under this definition. Covered contracts must also be performed, in whole or in part, in the United States. In addition, the following contracts are covered:

• Procurement contracts for construction covered by the Davis Bacon Act
• Contracts for services under the Service Contract Act
• Concessions contracts under the Service Contract Acct
• Contracts connected with federal contracts or land and related to offering services to federal employees, their dependents, or the general public

When does the vaccine mandate take effect?

Unless granted an exemption, current covered contractor employees must be fully vaccinated by December 8, 2021. That means they must have received their final vaccine dose by November 24, 2021. For contracts where an option was exercised, extended or renewed, covered employees must be fully vaccinated by the first day performance begins.

Covered employers must require covered employees to show one of the following documents:

• A copy of the immunization record from a health care provider or pharmacy
• A copy of the COVID-19 Vaccination Record Card
• A copy of medical records documenting the vaccination
• A copy of immunization records from a public health or State immunization information system
• A copy of any other official documentation verifying vaccination with information on the
  • Vaccine name
  • Date(s) of administration
  • Name of the health care professional or clinic site that administered the vaccine

Covered contractors must also require all individuals, including visitors, to comply with published CDC guidance on masking and physical distancing at all covered contractor workplaces.

Who is considered a covered contractor employee?

Nearly all full-time and part-time employees are considered covered employees. The guidance defines a covered employee as a full-time or part-time employee that works “on or in connection with a covered contract” or works “at a covered contractor workplace.” According to Q&A 17, an employee meets the “in connection with a covered contract” if they “perform duties necessary to the performance of the covered contract.” This includes employees in human resources, legal, or accounting.

Employees work at a “covered contractor workplace” if they work at any location “controlled by a covered contractor.” This includes both outdoor and indoor areas. According to Q&A 9, this consists of a covered contractor-controlled campus with multiple buildings, sites or facilities. Even if a covered employee is working in one building, every other building on a campus is considered employer controlled unless a covered contractor can “affirmatively determine that none of its employees . . . will come into contact with a covered contractor employee during the period of performance of a covered contract.” This includes no interactions between covered contractor employees and non-covered contractor employees.

If you are subject to any federal contracts, meet with legal counsel soon to determine what steps you need to take to comply. Have a plan ready to deal with any covered employees that request an exemption. As you verify vaccination, don’t forget federal privacy laws when collecting health information about employees.

For additional insights on vaccine mandates and your responsibilities as an employer, view the on-demand advisory session Mandates, Masks and More: The Latest on COVID-19 Vaccines in the Workplace.