A recent vaccination mandate from the U.S. government will have a tremendous impact on the workforce of contractors and subcontractors that have contracts with the federal government. Many employers and employees are facing decisions they never expected to have to make.
A COVID-19 vaccine mandate recently issued by the Safer Federal Workforce Task Force affects nearly all federal contractors. The COVID-19 Workplace Safety Guidance for Federal Contractors and Subcontractors requires the employees of federal contractors to be fully vaccinated by December 8 and imposes other pandemic-related workplace safety requirements.
On September 9, U.S. President Joe Biden announced his Path Out of the Pandemic: COVID-19 Action Plan. One of the main goals of the plan is to get more people vaccinated. As part of that plan, the president signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, which specifies that federal contractors and subcontractors shall, for the duration of the contract with the federal government, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.
Companies must provide COVID-19 safeguards in workplaces with individuals working on or in connection with a federal government contract or “contract-like instrument.” These workplace safety protocols 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 hope, according to the task force, is that these safeguards will decrease the spread of SARS-CoV-2, the virus that causes COVID-19, which in turn will decrease worker absence, reduce labor costs and improve the efficiency of contractors and subcontractors performing work for the federal government. Federal contractors and subcontractors with a covered contract will be required to conform to the following workplace safety protocols:
- COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation for medical or religious reasons;
- Compliance by individuals, including covered contractor employees and visitors, with the guidance related to masking and physical distancing while in covered contractor workplaces; and
- Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.
In a blog published on the web site of law firm Fisher Phillips, Partner Cheryl L. Behymer and Associate Hannah Sweiss outline what is required of employers and chart a “plan for success” to help federal contractors navigate the new mandate.
As noted by Behymer and Sweiss, “All covered contractor employees, including those who previously had COVID-19 and including those who work outside or work remotely, must be fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation for a disability (including medical conditions) or sincerely held religious belief, practice, or observance.”
Covered employees must be fully vaccinated by December 8, so the last dose must be taken no later than November 24 (the day before Thanksgiving) to meet this deadline.
Covered contractors must verify an employee’s vaccination status by obtaining proof and cannot document an employee’s vaccination status by way of self-attestation, said Behymer and Sweiss in the blog “Federal Contractors Face Vaccine Mandate by December 8: An Employer’s Plan for Success.”
Covered contractors must require covered contractor employees to show or provide one of the following, and employees are allowed to show or provide to their employer a digital copy of such records, including, for example, a digital photograph, scanned image or PDF of one of the following vaccine records:
- A copy of the record of immunization 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; or
- A copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine.
Other Workplace Requirements for Federal Contractors
Both federal and federal contractor worksites—including outdoor worksites—must require all individuals including both employees and visitors to comply with published CDC guidance for masking and physical distancing.
“In areas of high or substantial community transmission (which is currently most places in the United States) all individuals, regardless of vaccination status, must wear a mask indoors, subject to limited exceptions (e.g., alone in a room, while eating or drinking, etc.). In areas of low or moderate community transmission, those who are fully vaccinated are generally exempt from masking in most settings,” wrote Behymer and Sweiss. In addition, employees who are fully vaccinated do not need to physically distance regardless of the level of transmission in the area.
Those who are not fully vaccinated must wear a mask indoors and in certain outdoor settings that involve crowded outdoor settings and sustained close contact with other people who are not fully vaccinated, regardless of the level of community transmission in the area. They should also maintain a distance of at least six feet from others at all times, including in offices, conference rooms and all other work spaces.
“When the level of community transmission in the area of a covered contractor workplace increases from low or moderate to substantial or high, contractors and subcontractors should put in place more protective workplace safety protocols consistent with published guidelines. When the level of community transmission in the area of a covered contractor workplace is reduced from high or substantial to moderate or low, the level of community transmission must remain at that lower level for at least two consecutive weeks before the covered contractor utilizes those protocols recommended for areas of moderate or low community transmission,” the attorneys advised.
For visitors, covered contractors should post signage providing information on safety protocols for fully vaccinated and not fully vaccinated individuals.
Some of you might be wondering what happens if a state or city prohibits compliance with some or all of these mandates and safety protocols. Behymer and Sweiss have an answer: “The Guidance expressly states that the requirements are pursuant to federal law and supersede any contrary State or local law or ordinance. However, any State or locality may implement more protective measures.”
