Federal Contractor Vaccine Deadline Shifted

Federal contractors have five more weeks to require employees to get fully vaccinated, as the original deadline of Dec. 8, 2021, has been pushed back to Jan. 18, 2022. Updated guidance from the Safer Federal Workforce Task Force and new FAQs brings the deadline closer to the date by which large employers subject to OSHA’s Emergency Temporary Standard (“ETS”) must have their workforce fully vaccinated or tested weekly. (See our blog post for a review of the ETS requirements.) Here, we answer the most common questions we are hearing about the vaccine requirements for federal contractors and subcontractors.

Q1. Who is required to comply?  

Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, directs executive departments and agencies to ensure that covered contracts and “contract-like instruments” include a clause requiring the contractor and any subcontractors to comply with Task Force guidance for the duration of the contract. The EO does not apply to contracts equal to or less than $250,000 or subcontracts exclusively for products. The Task Force guidance defines contracts and “contract-like instruments” the same as those defined in the minimum wage for federal contractors proposed rule (86 Fed. Reg. at 38887, Jul. 22, 2021). However, the guidance strongly encourages agencies to include a clause requiring compliance even in contracts not covered or directly addressed by the EO, particularly smaller contracts and those for the manufacturing of products. Some agency deviations did just that (see FARGSADoD and VA).  

Q2. When does the clause have to be inserted into covered contracts? 

The Task Force guidance requires contracts awarded prior to Oct. 15, 2021, to include the clause when the contract is extended or renewed, or when an option is exercised. For contracts awarded on or after Nov. 14, 2021, the requirements must be included at the time of contracting. Agencies were encouraged to include the new clause in contracts awarded between Oct. 15 and Nov. 14, unless the solicitation was also issued on or after Oct. 15 in which case the clause is required.  

Q3. What does the Task Force guidance require? 

In short, all covered contractor employees must be fully vaccinated. There is no option for covered contractor employees to be tested weekly instead of being fully vaccinated. 

Q4. Does the vaccination requirement apply to all employees – even those not working on a Federal contract? 

The Task Force’s workplace safety protocols apply to all full-time and part-time covered contractor employees working on or in connection with a covered contract. This includes contractor or subcontractor employees in covered contractor workplaces who are not working on a Federal contract UNLESS you can affirm they will not come into contact with a covered contractor employee (including in common areas such as lobbies, elevators, stairwells, meeting rooms, kitchens, security clearance areas, parking garages, etc.). Employees working “in connection with” a Federal contract include employees in HR, billing, legal review, etc. 

Q5. How is fully vaccinated defined? 

Under the Task Force guidance, people are considered fully vaccinated for COVID-19 two weeks after they have received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine. 

Q6. What is the deadline by which employees must be vaccinated? 

Covered contractor and subcontractor employees must be fully vaccinated no later than Jan. 18, 2022, or the first day of performance on a new, renewed or extended contract, if later. For example, if a contract originally awarded prior to Oct. 15, 2021, renews or is extended before Jan. 18, 2022, covered employees must be fully vaccinated by Jan. 18. The same is required of covered employees under a new contract awarded after Nov. 14, 2021, unless the start date is sometime after Jan. 18. Contracts originally awarded prior to Oct. 15, 2021, but renewing after Jan. 18, 2022, likely will not need to comply with the vaccination requirement until the first day of the renewed or extended contract unless the contracting agency requires an earlier compliance date.  

Q7. Is proof of vaccination required? 

Yes. Covered contractors must review covered employees’ documentation to prove vaccination status. Acceptable documentation includes a record of immunization from a health care provider or pharmacy, a COVID-19 Vaccination Record Card, medical records documenting the vaccination, immunization records from a public health or State immunization information system, or some other official documentation with the vaccine name, date(s) of administration, and the name of administering health care professional or clinic. Paper copies and digital copies of the documentation is sufficient. An attestation of vaccination by the covered contractor employee is not an acceptable substitute for documentation of proof of vaccination. 

Q8. Is a prior-COVID-19 infection or a recent antibody test acceptable proof of vaccination? 

No. Covered contractor employees who have had a prior COVID-19 infection are still required to be vaccinated. A recent antibody test is not acceptable proof of vaccination status. 

Q9. Are there masking requirements, in addition to vaccination requirements? 

Yes. The Task Force guidance requires covered contractors to ensure that all individuals, including covered contractor employees and visitors, comply with published CDC guidance for masking and physical distancing at a covered contractor workplace. This includes requiring individuals to wear appropriate masks consistently and correctly where required. Covered contractors must check the CDC COVID-19 Data Tracker County View website for community transmission information in all areas where they have a covered contractor workplace at least weekly to determine proper workplace safety protocols. 

Q10. What are the accommodation requirements? 

Covered contractors may be legally required to provide an accommodation to covered contractor employees who communicate to the covered contractor that they are not vaccinated against COVID-19 (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. Requests for “medical accommodation” or “medical exceptions” should be treated as requests for a disability accommodation. Covered contractors should review and consider what, if any, accommodations must be offered under federal and in some cases, state law.  

Q11. Must covered contractors require subcontractors to comply with the Task Force guidance? 

Yes, covered contractors and subcontractors are subject to the requirements in the Task Force guidance. The prime contractor must incorporate the required contract clause into first-tier subcontracts. First-tier subcontractors must flow the clause down to lower-tier subcontractors the same way, so that accountability for compliance is fully established through the federal contract supply chain at all tiers required by the federal contracting agency.  

Many employers are grappling with federal vaccine requirements for the workplace. The release of this updated guidance highlights the evolving nature of these, and other, COVID-19-related requirements. The good news is that there are resources available to support your efforts as you navigate these waters. Our team can assist with identifying worksite requirements, developing processes to track and verify vaccination status and manage/respond to accommodation requests, creating a communication strategy so you communicate early and often, sourcing third-party vendors to assist where needed and a myriad of other issues related to implementation.

Rebecca Atkins
by Rebecca Atkins

Principal, Mercer Health

Katharine Marshall
by Katharine Marshall

Principal, Mercer's Law & Policy Group

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