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Sep 28, 2021

ALERT: Guidance released on federal contractor vaccine mandate

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On September 24, 2021, the Biden administration released guidance on the new vaccine mandate for federal contractors, entitled COVID-19 Workplace Safety Guidance for Federal Contractors and Subcontractors. The new guidance implements Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, issued by President Biden on September 9, 2021. The executive order directed the Safer Federal Workforce Task Force to issue COVID-19 workplace safety guidance for covered federal contractors and keep it updated. The Office of Management and Budget (OMB) approved the guidance, so it is enforceable. Here's what's new:

Types of covered contracts: Plan on reading the fine print in any new or modified federal contracts or subcontracts, because the guidance actively encourages federal agencies and covered federal contractors to impose the new COVID-19 (coronavirus) safety protocols on all contractors, even those who aren't covered by the executive order! We previously reported that the executive order covers federal contracts and subcontracts for services, construction, leases of real property, and concessions, but not supplies (such as purchases of federal timber) or grants. The order also doesn't apply to federal procurement contracts whose value is less than or equal to the simplified acquisition threshold, which is currently $250,000. The order requires covered contractors to include a COVID-19 safety clause (still to be developed) in their covered subcontracts, but the guidance also gives agencies and contractors free reign to voluntarily include the clause in supply contracts, procurement contracts valued at $250,000 or less, and contracts that are entered into or updated before the clause becomes mandatory.

Effective date: The effective date depends on when you sign a covered federal contract or extend, renew, or exercise an option under an existing contract. The new guidance clarifies that federal agencies and the Federal Acquisition Regulatory Council must begin including the COVID-19 safety clause in solicitations issued on or after October 15, 2021. For solicitations issued before that date which result in contract awards between October 15 and November 14, 2021, agencies are encouraged (but not required) to incorporate the COVID-19 safety clause into the newly awarded contract. The clause is mandatory for new federal contracts awarded on or after November 14, 2021, and for existing federal contracts that are extended, renewed, or optioned on or after October 15, 2021.

Covered contractor employees: This definition applies to employees who: (1) work on or in connection with a covered federal contract; or (2) have nothing to do with the covered federal contract but are nonetheless working at a “covered contractor workplace.” Working “in connection with” a federal contract means an employee's work is necessary to the performance of the covered contract, but the employee isn't directly performing the specific work under the contract; typical examples include human resources and accounting roles. A person who works from home on or in connection with a covered contract is considered a covered contractor employee, although they don't have to comply with the guidance's masking and physical distancing requirements.

Covered contractor workplace: This is any workplace (indoors or outdoors) where an employee working on or in connection with a covered contract is “likely to be present” during the term of the contract. However, if you can prove those employees are confined to a separate floor or work area, with no physical interaction with coworkers on other floors or in other areas, you may limit the COVID-19 safety protocols to just those employees working on or in connection with a covered contract. You must consider interactions in common areas such as lobbies, meeting rooms, dining areas, and parking garages. If any physical interaction between the two groups is likely, all employees at the entire facility are covered contractor employees.

Vaccination requirements: Covered contractor employees must be fully vaccinated by December 8, 2021, or the first day of the period of performance under the federal contract, whichever is later. Remote employees working from home on or in connection with a covered contract are covered by the vaccination requirements even if they never physically visit another workplace. A limited 60-day exception to the deadline is available for federal agencies that have an urgent mission-critical need.

In addition, workers can ask to be excused from the vaccine mandate for medical or sincerely held religious reasons. Each contractor (not the government) is responsible for receiving and assessing these requests and evaluating whether they can be reasonably accommodated without undue hardship or a direct threat to health and safety. For medical requests, we recommend requiring a doctor's written statement verifying that the employee shouldn't receive the vaccine. For religious requests, we have a new Model Form, Religious Accommodation Request. As we previously reported, Oregon employers in the health care industry and K-12 schools who are subject to mandatory vaccination requirements as of October 18, 2021, are required to use official accommodation request forms from the Oregon Health Authority (OHA). Oregon's COVID-19 Vaccine web page contains OHA's medical and religious forms and accompanying instructions, as well as FAQs for both healthcare providers and schools. Individuals who are excused from being vaccinated will most likely need to comply with masking and physical distancing requirements unless they're working remotely. When granting an accommodation to the vaccine mandate, we recommend notifying the employee in writing that you'll periodically reevaluate the accommodation to assess whether it's still feasible and isn't causing an undue hardship. Contact your Vigilant Law Group employment attorney if you need help evaluating or resolving a request.

The new guidance says acceptable proof of vaccination includes a copy of: (1) a record from a health care provider or pharmacy; (2) a COVID-19 Vaccination Record Card from the Centers for Disease Control and Prevention (CDC); (3) a medical record documenting the vaccination; (4) an immunization record from a public health or state immunization information system; or (5) any other official documentation containing the name of the vaccine, the date(s) of administration, and the name of the health care professional or clinic site administering the vaccine. Employees may show digital copies of their records, such as a photo, a scanned image, or a PDF.

You must post signs at the entrances of your covered contractor workplaces explaining safety protocols (including masking and physical distancing) based on vaccination status. You're not required to verify the vaccination status of visitors, but you must take reasonable steps to ensure they comply with your safety protocols.

Mask and physical distancing requirements: Your COVID-19 safety protocols must be at least as protective as current CDC guidance on masking and physical distancing for all employees and visitors who are present in a covered contractor workplace. The mask rules depend on the level of community transmission of the virus, based on the CDC COVID-19 Data Tracker County View for each covered contractor workplace. You must check the data tracker at least weekly. You're required to implement more protective workplace safety protocols “consistent with published guidelines” in areas where the level of community transmission is substantial or high, compared to less protective protocols that are allowed when the level of transmission is low or moderate. Surprisingly, the guidance doesn't specify what constitutes more protective safety protocols, other than the requirement for fully vaccinated individuals to wear masks indoors in areas of substantial or high community transmission. If the level is substantial or high and then drops to low or moderate, you must keep the enhanced safety protocols in place for at least two more weeks before shifting gears. The reverse isn't true, however—if the transmission level increases from low or moderate to substantial or high, you must implement the enhanced protocols without delay.

In areas of high or substantial community transmission, everyone must wear masks indoors, including fully vaccinated people, unless an exception applies. In areas of low or moderate community transmission, fully vaccinated people don't have to wear masks indoors. Regardless of community transmission levels, people who are fully vaccinated don't have to physically distance from other people.

People who aren't fully vaccinated must wear a mask indoors in any common areas or shared workspaces (including open cubicles), regardless of community transmission levels. They must also wear masks in crowded outdoor settings and during outdoor activities that involve sustained close contact with other people who aren't fully vaccinated. To the extent “practicable,” these individuals must stay at least 6 feet away from other people in the workplace.

You may allow exceptions to the requirements for masks and physical distancing as long as they're consistent with CDC guidelines. Examples include employees who are alone in an office with floor to ceiling walls and a closed door and employees who are actively eating or drinking while keeping at least 6 feet apart. The new guidance says you may also provide exceptions for your employees “engaging in activities in which a mask may get wet; high intensity activities where covered contractor employees are unable to wear a mask because of difficulty breathing; or activities for which wearing a mask would create a risk to workplace health, safety, or job duty as determined by a workplace risk assessment.” If you approve an exception, you must put it in writing. Talk with your Vigilant safety professional if you need help performing a workplace risk assessment.

To the extent that masks are required by the federal contractor guidance, you must enforce the rules. That means requiring appropriate masks (for example, face masks alone or cloth masks with exhalation valves aren't acceptable) and ensuring people wear them properly over their mouths and noses.

Designation of COVID-19 coordinator: You must designate one or more people to coordinate your COVID-19 safety protocols and ensure proper implementation of the new federal contractor guidance.

Tips: Work with your sales team or anyone else involved with bidding on or negotiating federal contracts or subcontracts to review the text of any solicitations or agreements on or after October 15, 2021. You don't want to be blindsided by these new federal contractor requirements, especially if an agency or higher-tier contractor slips them into a contract that isn't otherwise covered by the executive order. If you're a covered federal contractor, make sure you incorporate the COVID-19 safety protocol clause into covered subcontracts. The text of that clause hasn't yet been published; we'll report on its eventual release in a future newsletter.

Interestingly, neither the executive order nor the new guidance establishes a mechanism for enforcement of these requirements. At a minimum, the text of each agreement will govern enforcement. Breach of applicable COVID-19 safety protocols would be a breach of your contract, so all of the normal remedies for breach of the contract would apply. It's also possible that employees could file safety complaints with federal OSHA or their state safety and health agency, alleging that you violated OSHA's general duty clause by not complying with a legally required safety and health standard.

We'll monitor legal challenges to the executive order and accompanying guidance and will report on any decisions that impact employers. In the meantime, if you expect to land a covered federal contract (or extend or renew one, or exercise an option that would bring you into coverage), start taking steps now to evaluate how you'd implement the new requirements. For most employers, the vaccine mandate will be the biggest change. We'll also report on any developments regarding the administration's plan to have federal OSHA release an Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to ensure employees who aren't fully vaccinated are tested weekly for COVID-19.

If your workplace is located in Montana, keep in mind that as of May 7, 2021, HB 702 prohibits employers and businesses from discriminating against individuals on the basis of vaccination status. Therefore in order to comply with both Montana state law as well as the federal contractor vaccine mandate, you'll likely need to treat all employees as if they're unvaccinated for purposes of the mask and physical distancing requirements. The new federal guidance says it supersedes any contrary state law, but doesn't excuse employers from complying with state or local laws that are more protective than the federal guidance. In this case, implementing Montana's nondiscrimination provisions provides greater protection, because everyone will have to mask up indoors and stay at least 6 feet apart regardless of vaccination status or level of community transmission.

If you have any questions about the executive order or these new guidelines, contact your Vigilant Law Group employment attorney.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.

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