Federal Contractor Vaccination Mandate: Important Dates for Covered Contractors

*UPDATE, Nov. 11, 2021: Deadline for Compliance Extended to January 18, 2022, and Federal Guidance Updated. Stay tuned!

In response to the Path Out of the Pandemic: COVID-19 Action Plan announced by President Biden on September 9, and Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (the “Order”), signed by the President the same day, the Safer Federal Workforce Task Force (“Task Force”) issued “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” (“Guidance”) on September 24, 2021. We addressed the Order and Guidance in prior blog posts, one from October 13, 2021, and one from September 28, 2021.

The Order requires all executive departments and agencies of the federal government to ensure that covered contracts and contract-like instruments include a clause (“Clause”) requiring covered federal government contractors and subcontractors at any tier (“Covered Contractors”), for the duration of their respective contracts, to comply with the requirements of the Order and all guidance published by the Task Force.  The requirements apply to new contracts awarded on or after October 15, 2021, and to contracts entered before that date when an option is extended or an extension is made.

Important Dates for Covered Contractors:

• October 15, 2021 – For all contracts awarded prior to October 15, where performance is ongoing, the Clause must be incorporated when an option is exercised or an extension is made. Between October 15 and November 14, agencies must include the Clause in their solicitations.  The government encouraged agencies and contractors to include the Clause in contracts that were solicited before October 15, but did not require them to do so.
• November 14, 2021 – All new contracts awarded on or after November 14 must include the Clause.
• December 8, 2021 – All Covered Contractor Employees under existing contracts are to be fully vaccinated for COVID-19 no later than December 8, unless the employee is legally entitled to an accommodation. The Guidance, however, is silent as to the treatment of employees who are not vaccinated by the deadline, and it does not require contractors to terminate the employment of unvaccinated workers. Employers need to consider how they will respond to employees who refuse to be vaccinated and are not entitled to an accommodation under the law.  In doing so, employers should review the FAQs issued to federal agencies regarding vaccination and the considerations listed for enforcement of the vaccination requirement.
• Post-December 8, 2021 – All Covered Contractor Employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.

As of October 15, 2021, federal agencies are directed to include the Clause mandating compliance with the Order in their covered government contracts.  At present, some agencies are being very aggressive in demanding that the Clause be included in new contracts and before any existing contract option or renewal is acted upon.  Contractors should therefore begin the process of collecting employee vaccination information. To be fully vaccinated by the December 8, 2021 deadline, Covered Contractor Employees must receive their final shot by November 24, 2021.  Covered Contractors should also set a date well in advance of December 8, 2021, by which employees may request accommodations so that the employers can engage in the interactive process. Accommodations could include regular COVID-19 testing, masking, social distancing and/or remote work.

We will continue to monitor the ongoing developments regarding federal government-mandated vaccinations and remain available to assist companies in determining the applicability and implementation of the Order’s requirements.