New COVID-19 Guidance for Federal Contractors and Subcontractors


Executive Agency Federal Contractors and Subcontractors


September 24, 2021


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President Biden recently issued the Path Out of the Pandemic Action Plan, which included vaccination requirements for federal contractors and subcontractors pursuant to Executive Order 14042. The Safer Federal Workforce Task Force recently released Guidance for Federal Contractors and Subcontractors implementing those requirements.

Contracts and contract-like instruments with federal executive agencies must include a clause, that the contractor and any subcontractors (at any tier) are also required to incorporate into lower-tier subcontracts, stating that the contractor or subcontractor shall, for the duration of the contract, comply with all Task Force guidance for contractor or subcontractor workplace locations. “Contract and contract-like instrument” has the meaning set forth in the Department of Labor’s proposed rule, “Increasing the Minimum Wage for Federal Contractors,” 86 Fed. Reg. 38,816, 38,887 (July 22, 2021).

Specifically, federal contractors and subcontractors with a covered contract will be required to conform to the following workplace safety protocols:

  • Covered employees must be fully vaccinated by December 8, 2021, except in limited circumstances where an employee is entitled to an accommodation. Thereafter, employees must be vaccinated by the first day of performing a covered contract, subject to limited exception. Employers must review employee documentation, in either hard copy or digital format, to prove vaccination status.
  • Masks and Distancing. Covered employees and visitors must comply with the CDC’s mask and physical distancing requirements, including when applicable to specific industries, while in covered contractor workplaces, subject to limited exception. Covered contractors must check the CDC COVID-19 Data Tracker County View website for community transmission information at least weekly to determine proper workplace safety protocols.
  • Safety Coordinator. Covered contractors must designate person(s) to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

The Guidance makes clear that the vaccination rules apply to all employees of a covered contractor who work in a location controlled by a covered employer (e.g., not an employee’s residence) where any employee working in connection with a covered contract is likely to be present. There is also an FAQ portion of the Guidance to provide more detailed information on requirements. The FAQs are separated into categories: vaccination and safety protocols, workplaces, scope and applicability, and compliance.

Additionally, the FAQs clarify a phase-in period for contracts depending on when they are awarded. The requirements must be incorporated in active contracts awarded prior to October 15, 2021 at the point at which an option is exercised or an extension is made.  The requirements must be incorporated into contracts awarded on or after November 14, 2021.  Between October 15 and November 14, agencies must include the clause in the solicitation and are encouraged to include the clause in contracts awarded during this time period but are not required to do so unless the solicitation for the contract was issued on or after October 15, 2021.

On September 30, 2021, the Federal Acquisition Regulation (FAR) Council issued a Memorandum on Issuance of Agency Deviations to Implement Executive Order 14042, which includes the specific contract language required to be incorporated into federal contracts and subcontracts. The Memorandum also states that the clause must appear in federal subcontracts at any tier that exceed the simplified acquisition threshold ($250,000) and are for services, including construction, performed in whole or in part within the United States or its outlying areas. Since that date, a number of federal agencies have issued class deviations to incorporate required language into their covered contracts. Contractors should review any deviations from their specific contracting agency.

Action Items

  1. Review the Guidance here.
  2. Review federal contracts and subcontracts for compliance.
  3. Prepare to implement mandatory vaccination policies and procedures.
  4. Review safety protocols for compliance and designate COVID-19 safety coordinator(s).
  5. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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