As we previously reported, on September 9, 2021, President Biden announced Executive Order 14042 ("Executive Order") and related initiatives designed to lead the country out of the COVID-19 pandemic. Several of the policies announced in the Executive Order will require employees of contractors that do business with the federal government to be vaccinated. However, the Executive Order left open a number of questions around the way the requirements would be implemented. Some of those questions have now been answered. On September 24, 2021, the Safer Federal Workforce Task Force (Task Force) released Guidance for Federal Contractors and Subcontractors (Guidance). A summary of the main highlights is provided in this article.
According to the Executive Order, and subsequent issued Guidance, covered employees must be fully vaccinated by December 8, 2021, or at the latest, by the first day of performance on a covered contract, absent the need for a disability or religious accommodation. In addition, covered contractors must follow the CDC's mask and physical distance requirements for covered contractor employees and visitors.
Employers Covered by the Executive Order
The requirements set forth in the Executive Order and the Guidance apply to any prime contractor or subcontractor that is a party to a "contract or contract-like instrument" that includes a clause incorporating the requirements of the Executive Order. The Executive Order directs the Federal Acquisition Regulatory Counsel (FAR Council) to prepare the required clause that will be incorporated into federal contracts – specifically federal contracts or subcontracts involving services or construction, or those relating to federal property. The Guidance further provides that the term "contract" is to be interpreted broadly and includes bilateral agreements; awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; and certain purchase orders, among other instruments.
Pursuant to the Executive Order, the FAR Council and federal agencies are to incorporate the requirements set forth in the Executive Order into new covered instruments entered into on or after October 15, 2021. The new clause will apply on or after October 15, 2021 to only new federal contracts, solicitations, contract extensions and renewals, and options exercised under existing contracts. Some exclusions from coverage under the Executive Order are grants; contracts whose value is equal to or below the FAR simplified acquisition threshold (which is currently $250,000); and employees who perform work outside the United States. However, the Guidance reiterates the directive found in the Executive Order that federal agencies are "strongly encouraged" to incorporate the vaccination and safety protocols into existing contracts as well as to certain contracts that would not otherwise be covered by the Executive Order.
Employees Covered by the Executive Order
The Guidance provides that the vaccine mandate applies to all employees (whether full-time or part-time) working "on or in connection with a covered contract" or "at a covered contractor workplace."
An employee works "in connection with a contract" even if the employee's work is not called for under the contract, as long as the work is "necessary to the performance of the contract". The Guidance provides that employees in support functions such as "human resources, billing, and legal review" would be covered.
A "covered contractor workplace" is defined by the Task Force as a "location controlled by a covered contractor at which any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period or performance for a covered contract." (emphasis added) Outdoor as well as indoor work locations are covered. However, a covered contractor employee's residence is not included in determining whether a location is a "covered contractor workplace".
Employees who remotely perform work on a covered contract, even if such employee never performs work at a covered contractor workplace or federal workplace, are covered employees. Therefore, such remote employees would be required to be vaccinated absent being provided an accommodation.
To summarize, as long as one individual onsite works on or in connection with the contract, then every individual at the worksite is subject to the COVID-19 workplace safeguards, including the mandatory vaccination requirement. Therefore, "covered contractor employees" are those who (a) work at a worksite in which at least one individual works on or in connection with a covered federal contract; and/or (b) work on or in connection with a covered federal contract (including remotely).
Other Requirements of the Executive Order
- Employees covered under the Executive Order must be fully vaccinated by December 8, 2021, meaning two weeks have passed since receiving the second dose of the Pfizer or Moderna vaccine, or two weeks after receiving a single dose of the Johnson & Johnson vaccine, absent an accommodation being provided. Covered contractors are responsible for determining if a covered contractor employee must be provided an accommodation. Currently, there is no COVID-19 vaccine booster requirement.
- Covered employers must post signs at entrances to covered contractor workplaces concerning safety protocols for individuals who are fully vaccinated and not fully vaccinated.
- Covered contractors must view or view and retain a copy of the vaccination record card or other approved form of proof of vaccination for each covered employee. Self-attestation that the individual has been vaccinated is insufficient.
- Covered contractors are to follow the CDC's mask wearing and physical distance guidance for covered contractor employees and visitors.
- Covered contractors are to provide accommodations to covered contractor employees who cannot wear a mask because of a disability or because of a sincerely held religious belief, practice, or observance.
- Covered contractors are to check the CDC COVID-19 Data Tracker County View website weekly for all areas where they have a covered contractor workplace to ensure they are following proper workplace safety protocol.
- Covered contractors are to have a designated individual to coordinate COVID-19 safety efforts at a covered contractor workplace.
ADP will continue to monitor and advise on this evolving topic. Please contact your dedicated service professional with any questions.