New COVID-19 Workplace Safety Guidance for Federal Contractors and Subcontractors

COVID-19 Update

Date: September 28, 2021

Key Notes:

  • On September 24, the Safer Federal Workforce Task Force issued “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.”
  • It builds on President Biden’s September 9 “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors.”
  • It also defines the specific parameters of the vaccination mandate, as well as other safety protocols that contractors and subcontractors must follow.
  • Covered contractors must still comply with reasonable accommodation requirements under Title VII and the Americans with Disabilities Act.
  • Covered contractors will be required to comply with any updates to the new guidance.

On September 24, the Safer Federal Workforce Task Force (“Task Force”) released its “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” (“Guidance”), which defines the specific parameters of the vaccination requirement, as well as other safety protocols that contractors and subcontractors must follow. The Guidance is pursuant to and references the “Executive Order on Ensuring Adequate COVID Safety Protocols for Contractors” (“Executive Order”), which President Biden issued on September 9.

Generally, the Guidance requires covered employees to be fully vaccinated by December 8, 2021, unless the covered contractor is legally required to provide an accommodation for a disability or sincerely held religious belief or practice. Contractors must also follow the CDC’s guidance for mask wearing and physical distancing for covered contractor employees and visitors.

Scope and Applicability

The workplace safety protocols in the Guidance “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.”

The Guidance clarifies the types of contracts and subcontracts that are covered by the new safety protocols, which are:

  • contracts for services subject to the Service Contract Act;
  • construction contracts covered by the Davis-Bacon Act;
  • concessions contracts with the federal government; and
  • contracts for services in connection with federal property or land.

The Guidance’s requirements also apply to subcontracts at all tiers under the above categories of prime contracts, except for subcontracts solely for the provision of products. The prime contractor must flow the clause down to first-tier subcontractors; higher-tier subcontractors must flow the clause down to the next lower-tier subcontractor, to the point at which the subcontract is solely for the provision of products.

While the Executive Order does not expressly apply to government contracts or subcontracts for the manufacture or supply of products, the Guidance nevertheless strongly encourages federal agencies to extend the new workplace safety protocols to these types of contracts. As a result, contractors and subcontractors who manufacture or supply products to the government may very likely face the same requirements as their counterparts in the construction and service industries.

As originally suggested by the Executive Order, the safety protocols set forth in the Guidance will apply to employees of covered contractors who do not work on or in connection with a federal contract, and instead perform only commercial work at a contractor’s workplace. A “covered employee,” for purposes of the Guidance, includes any full-time or part-time employee who works at a location at which an employee working on or in connection with a contract “is likely to be present.” This means that if an employee solely performs commercial work in a facility, building or campus where federal government contract work is also being performed, that employee would likely be subject to the Guidance and the new vaccination requirement and other safety protocols. Additionally, fully remote workers who perform work on federal contracts from home are subject to the vaccination mandate, even if they never physically work at either a covered contractor workplace or federal workplace during the performance of a contract. Those individuals are only exempt from the face mask and social distancing requirements, as these safety protocols apply to a “covered contractor workplace,” which does not include a covered contractor employee’s residence.

The Guidance has a limited exception for situations where commercial and contract workers perform services in distinct areas of the same facility or in different buildings on the same campus. In these situations, the contractor must “affirmatively determine” that there will be “no interactions,” including in common areas like lobbies, elevators and parking garages, between government contract and commercial employees at the facility in order to avoid extending the vaccination requirement to all employees at a facility. The workplace safety protocols in the Guidance will not apply to covered contractor employees who only perform work outside the United States or its outlying areas, as those terms are defined in section 2.101 of the Federal Acquisition Regulation (FAR).

Contractors with federal contracts or subcontracts pre-dating October 15, 2021 will be required to comply with the Guidance when an extension or option is exercised with respect to the contract. After November 14, 2021, most new federal contracts will contain the clause requiring compliance. For contracts issued between October 15, 2021 and November 14, 2021, agencies appear to have some leeway with respect to inclusion of the contract clause, though the Guidance and Executive Order strongly encourage the clause’s inclusion.

It is important to note that the Guidance’s requirements are promulgated pursuant to federal law and supersede any contrary state or local law or ordinance.

Implementation

Broadly summarized, the Guidance directs the Federal Acquisition Regulatory Council (“FAR Council”) to conduct a rulemaking to amend the FAR to include a clause that requires covered contractors performing under FAR-based contracts to comply with the Guidance for contractor and subcontractor workplaces.

The Guidance states that prior to rulemaking, by October 8, the FAR Council will develop a clause and recommend that agencies exercise their authority to deviate from the FAR. Agencies responsible for contracts and contract-like instruments that are not subject to the FAR, such as concession contracts, will be responsible for developing appropriate guidance by October 8, to incorporate the requirements into their covered contract instruments entered into on or after October 15. The prime contractor will then be responsible for ensuring that the required clause is incorporated into its first-tier subcontracts in accordance with the implementation schedule set forth in section 6 of the Executive Order. The Guidance does not state how a prime contractor must verify or ensure that its subcontractors are adhering to the mandate.

Additionally, whether the above is even able to be done in compliance with the requirements of the Administrative Procedure Act (APA) is not yet clear, as a failure to comply with the APA could make the requirements of the Executive Order and Guidance unenforceable.

Requirements

Contractors or subcontractors covered by the Guidance face several specific COVID-19 workplace safety requirements. Most significantly, covered contractors must ensure that all employees who work on or in connection with the covered contract, or who work in a facility where contract work is being performed, be fully vaccinated for COVID-19. As mentioned above, this vaccination requirement will also apply to fully remote workers who perform work on federal contracts from home.

Following are some of the key takeaways from the Guidance.

Vaccination Requirements

  • Covered contractor employees must be fully vaccinated no later than December 8, 2021.
  • After December 8, and once the clause has been incorporated into a covered contract, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, an exercised option, or an extended or renewed contract.
  • Covered contractors will be responsible for ensuring that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation.
  • Covered contractors must require covered contractor employees to show or provide their employer with one of the documents listed on page 6 of the Guidance. Covered contractors must also review their covered employees’ documentation to prove vaccination status.
  • This documentation can be in either hard copy or digital format. Importantly, an employee’s own attestation of vaccination is not sufficient proof under the Guidance.
  • Consistent with the requirements of Title VII and the Americans with Disabilities Act, covered contractors have a duty to reasonably accommodate employees who are unable to receive a COVID-19 vaccine due to disability or a sincerely held religious belief, practice or observance. Accommodations must be considered on a case-by-case basis and contractors must engage in an interactive process with the employee at issue to determine if an appropriate accommodation can be provided.
  • If a federal agency has an urgent, mission-critical need for a covered contractor to have covered contractor employees begin work on a covered contract or at a covered workplace before becoming fully vaccinated, the agency head may approve an exception. If such an exception is granted, the covered contractor will have to ensure that its covered contractor employees are fully vaccinated within 60 days of beginning work on a covered contract or at a covered workplace.
  • Covered contractors are also “strongly encouraged” to incorporate similar vaccination requirements into their non-covered contracts and agreements (i.e., commercial) with non-covered contractors whose employees perform work at covered contractor workplaces or who do not work on or in connection with a federal contract, such as contracts and agreements related to the provision of food services, on-site security or groundskeeping services at covered contractor workplaces.
Masking and Physical Distancing Requirements

  • In addition to the vaccination mandate, covered contractors must also implement mask and physical distancing requirements for employees and visitors at their covered work locations.
  • If fully vaccinated, employees and visitors are generally not required to wear masks indoors or practice social distancing. However, if the contractor’s work location is in an area designated as a place of “high or substantial community transmission” by the Centers for Disease Control and Prevention (CDC), fully vaccinated employees must wear masks indoors. Contractors are responsible for monitoring the CDC’s COVID-19 Data Tracker County View weekly to confirm their location’s current status.
  • On the other hand, individuals who are not fully vaccinated must wear masks both indoors at a contractor’s work location and outdoors in any crowded setting or where there is sustained close contact with other individuals who are not fully vaccinated. These individuals must also practice appropriate social distancing at all times.
  • Covered contractors must require individuals in covered contractor workplaces who are required to wear a mask to:
    • Wear appropriate masks consistently and correctly (over mouth and nose).
    • Wear appropriate masks in any common areas or shared workspaces (including open floor plan office spaces, cubicle embankments and conference rooms).
    • Individuals who are not fully vaccinated (i.e., those who obtain accommodations from the Guidance and Executive Order’s requirements) must wear a mask in crowded outdoor settings or during outdoor activities that involve sustained close contact with other people who are not fully vaccinated, consistent with the CDC’s guidance.
  • As with the vaccination requirements, covered contractors may be required to provide accommodations to covered contractor employees who communicate that they cannot wear a mask because of a disability (which includes medical conditions) or because of a sincerely held religious belief, practice or observance. Covered contractors will also be required to review and consider what, if any, accommodation they must offer.
  • Under the Guidance, covered contractors may also provide for exceptions to mask wearing and/or physical distancing requirements consistent with CDC guidelines (such as if an individual is alone in an office with floor-to-ceiling walls and a closed door, or for a limited time when eating/drinking). Such exceptions must be approved in writing by an authorized representative of the contractor.
Designation of COVID-19 Safety Representative

The Guidance requires covered contractors to designate an appropriate representative, which can be one or more persons, to coordinate COVID-19 workplace safety efforts at covered contractor workplaces. The designated person(s) will ensure implementation as well as compliance with the Guidance and the workplace safety protocols at covered contractor workplaces.

The designated person(s) are also responsible for disseminating the COVID-19 workplace safety protocols and making sure they are provided to all covered contractor employees and all other individuals “likely to be present at covered contractor workplaces.” Page 8 of the Guidance details the medium that should be used to accomplish this.

COVID-19 Workplace Safety Protocols Signage

The Guidance also requires covered contractors to post signage instructing individuals to follow the appropriate workplace safety protocols while at the covered contractor workplace. The signage must be posted at entrances to covered contractor workplaces and provide information on safety protocols for fully vaccinated and not fully vaccinated individuals, including the protocols defined in the masking and physical distancing section of the Guidance.

Conclusion

Given the short time frame between October 15, 2021, the date on which the clause will start being included in government contracts, and the December 8, 2021 vaccination deadline, contractors who expect to receive covered contracts in the near future should begin preparing now to ensure that their workforce complies with the vaccination mandate. Similarly, organizations that are unsure whether they are subject to the new requirements should examine their existing or anticipated contracts to determine if they fall within the scope of the Executive Order and Guidance. Given the expansive reach of the new protocols to any tier of subcontract under a covered prime contract, organizations are wise to consult with legal counsel to determine whether they may be covered by the Guidance.

Contractors covered by the Guidance should take immediate steps to ensure implementation of the vaccination, mask and physical distancing requirements for covered employees and work locations, as well as ensure that these requirements are clearly communicated to all individuals impacted. Contractors should also ensure that all Human Resources and operational staff are appropriately trained on the new safety protocols and understand the contractor’s ongoing duty to provide reasonable accommodations for disability and sincerely held religious beliefs, practices and observances.

Our team will continue monitoring publications from the Task Force, Director and OSHA and will provide updates regarding the status of the Guidance and related regulatory developments.

FOR MORE INFORMATION

For more information, please contact:

Government Contracts

Tom Mason
202.263.4168
Thomas.Mason@ThompsonHine.com

Francis E. (Chip) Purcell, Jr.
202.263.4118
Chip.Purcell@ThompsonHine.com

Mona Adabi
202.263.4147
Mona.Adabi@ThompsonHine.com

Labor & Employment

Nancy M. Barnes
216.566.5578
Nancy.Barnes@ThompsonHine.com

M. Scott Young
513.352.6617
202.263.4134
Scott.Young@ThompsonHine.com

Matthew R. Kissling
216.566.5586
Matthew.Kissling@ThompsonHine.com

Additional Resources

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our COVID-19 Task Force page for additional information and resources.

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