*UPDATE, Nov. 11, 2021: Deadline for Compliance Extended to January 18, 2022, and Federal Guidance Updated. Stay tuned!
On November 1, 2021, the Safer Federal Workforce Task Force (“Task Force”) issued new FAQs for federal contractors and subcontractors (“covered contractors”) that are subject to Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (the “Order”), and its “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” (“Guidance”). The Guidance is intended to ensure that COVID-19 workplace safety protocols apply to any workplace locations in which an individual is working on or in connection with a federal contract or contract-like instrument. The new FAQs address vaccination and safety protocols, the scope and applicability of the Guidance, and compliance. 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.
Compliance – Refusal to Comply with Vaccination Mandate
Most importantly, the new FAQs address the steps covered contractors should take if a covered contractor employee refuses to be vaccinated who has not been provided, or does not have a pending request for, an accommodation. While the Task Force acknowledges that employers may use their usual processes for enforcement of workplace policies, as directed by their employee handbooks, collective bargaining agreements, or the like, it presents as an enforcement model one being followed by federal agencies that encourages compliance rather than immediate discipline or termination. Under that model, federal agencies first initiate a limited period of counseling education, followed by additional disciplinary measures (including suspension) if necessary, but move to removal or termination only after continued noncompliance.
While the process is being played out, the covered contractor must ensure that the covered contractor employee is following all workplace safety protocols for individuals who are not fully vaccinated at a covered contractor workplace. The employee, however, may be denied entry to a federal workplace by the federal agency.
Following news reports that the government would afford federal contractors “flexibility” in enforcement of the December 8 vaccination deadline, the FAQs further emphasizes encouragement of compliance by federal contractors themselves. Where covered contractors are working in good faith yet encounter challenges with compliance with COVID-19 workplace safety protocols, the Task Force directs that federal agencies should work with contractors to get into compliance. Only after a contractor fails to take steps to comply will “significant actions, such as termination of the contract,” be taken.
Vaccination and Safety Protocols – Accommodations and Timing
The new FAQs also address accommodations. The Task Force makes clear that a covered contractor does not need to resolve all requests for accommodation by the time that covered contractor employees begin work on a covered contract or at a covered workplace. Rather, the contractor can still take time to review and consider the requests for accommodations, provided the contractor requires the covered contractor employee with the pending accommodation request to follow workplace safety protocols for individuals who are not fully vaccinated.
For those covered contractor employees who receive an exemption from the vaccination requirement and work on-site at a federal workplace, the federal agency will determine the workplace safety protocols that such employees must follow. While the Task Force indicates that in most circumstances individuals who are not fully vaccinated will need to follow applicable masking, physical distancing, and testing protocols, it recognizes that “there may be circumstances in which an agency determines that the nature of a covered contractor employee’s job responsibilities at a federal workplace, or the location of their work at a federal workplace, requires heightened safety protocols.” This includes a determination that no safety protocol other than vaccination is adequate, and the unvaccinated employee will be unable to perform the requisite work at the federal workplace. This, of course, will not excuse the terms of the contract from being met. In order for agencies to assess appropriate safety measures, covered contractors must notify the agency when one of their employees who works onsite at a federal workplace has received an exception to the requirement to be fully vaccinated.
Where a covered contractor can access a covered contractor employee’s vaccination documentation, consistent with relevant privacy laws, the contractor does not need to require the employee to show or provide documentation.
Scope and Applicability of the Guidance – Corporate Affiliates
With respect to multi-establishment corporate entities, the FAQs provide, where a corporate affiliate of a covered contractor does not otherwise qualify as a covered contractor, employees of that affiliate are considered covered contractor employees subject to COVID-19 workplace safety protocols if performing work at a covered contractor workplace. In addition, if the workplace where a covered contractor’s employees perform work on or in connection with a covered contract is a location owned, leased, or otherwise controlled by a corporate affiliate, that workplace is considered a covered contractor workplace subject to COVID-19 workplace safety protocols.
For purposes of the Guidance, the Task Force states that “business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly: (i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.” Indicators of control include “interlocking management or ownership, identity of interests among family members, shared facilities and equipment, or common use of employees.” Multi-establishment corporate entities will have to conduct this analysis to determine if there are sufficient common controls. It is worth emphasizing that in conducting the affiliate analysis, the Task Force takes the expansive view that the “power to control” is alone sufficient for affiliate status even if the power has not been exercised.
Federal Workplace Safety Protocols – Masks and Social Distancing
With so much attention and focus on the vaccination mandate, the requirements related to masking and physical distancing while in covered contractor workplaces should not be overlooked. Covered contractors must ensure that all individuals at a covered contractor workplace, including employees and visitors, comply with published CDC guidance for masking and physical distancing. CDC guidance for specific workplace settings, e.g., healthcare, transportation, correctional and detention facilities, and schools, must be followed, if applicable.
With limited exceptions, fully vaccinated people must wear a mask in indoor settings in areas where community transmission is “high or substantial.” Individuals who are not fully vaccinated, however, must wear a mask indoors and in crowded outdoor settings and during outdoor activities that involve sustained close contact with other people, regardless of the level of community transmission. Individuals required to wear a mask must wear appropriate masks consistently and correctly. Accommodations may be required for covered employees who cannot wear a mask due to a disability or because of a sincerely held religious belief, practice, or observance.
Fully vaccinated individuals do not have to physically distance. By contrast, to the extent practicable, individuals who are not fully vaccinated must maintain a distance of at least six feet from others at all times, including in offices, conference rooms, and all other communal and work spaces.
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.