By Erin Roycroft and Blerina Kotori
The deadline for federal contractors and subcontractors to comply with President Biden’s rule regarding vaccines in the workplace has been extended an additional 30 days, to January 4, 2022. The new deadline was announced on Thursday, November 4, amid a flurry of other policy announcements related to vaccines in the workplace, including the announcement of the long-anticipated OSHA vaccine requirements for employers with over 100 employees. For more information about the OSHA rule for large employers, click here.
For federal contractors and subcontractors, the announcement of a deadline extension raises questions about complying with the requirements. The main points are addressed below – employers should consult with a labor and employment attorney about their specific workforce.
What is the rule?
President Biden’s Executive Order 14042 requires federal agencies to ensure that certain contracts and contract-like instruments contain a clause requiring the contractor to comply with guidance published by the Safer Federal Workforce Task Force related to COVID-19 safety. The Task Force released guidance that requires covered contractors to do the following:
- Ensure that employees are fully vaccinated except when an employee is legally entitled to an accommodation;
- Ensure that certain individuals in a covered contractor’s workspace, including employees and visitors, comply with published CDC guidance on masking and physical distancing in the situations outlined by the rule. Those requirements vary between fully vaccinated and non-vaccinated individuals; and
- Designate a point-person to coordinate COVID-19 workplace safety efforts at the covered contractor’s workplaces.
Unlike the recently announced OSHA rule for large private employers, the Guidance does not permit employers to offer a testing alternative for covered employees who do not wish to be vaccinated. The Guidance also does not make an exception for covered employees who work from home. Any employee who is covered by the Guidance must either be vaccinated or seek an accommodation by January 4, 2022. In certain circumstances, a federal agency may approve an exception to that deadline when the agency has an urgent, mission-critical need for the covered contractor employees to begin work on a covered contract before becoming fully vaccinated. Consult a labor and employment lawyer if you have questions about whether this exception applies to your contract.
How do you know if you are a covered contractor?
The Executive Order does not apply to all contracts, but it does apply to a wide range of contracts, including procurement contracts for services, construction, and leases for real property, and all contracts for services covered by the Services Contracts Act. If you are covered under the rule, your contracting agency will include a clause in your contract, likely titled “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” indicating that you agree to comply with the Task Force guidance.
Do you have to ensure that all of your employees are vaccinated?
The Guidance applies to all covered contractor employees, which includes all employees who work on or in connection with a federal government contract and all employees in the covered contractor’s workspaces. That definition is broad and includes any employee whose work is necessary to the performance of the covered contract, even if they do not directly engage in the specific work called for in the contract. Examples include employees in human resources, billing, and legal review. The definition of a “covered contractor workspace” is also broad; it includes any area used by covered contractor employees during the period of performance of a covered contract, including lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, parking garages, or any other space where covered contractor employees may come into contact with other employees.
Who will enforce the rule, and what are the penalties for noncompliance?
The contracting agencies are charged with ensuring that covered contractors comply with the terms of their contract. Agencies are authorized to terminate contracts for covered contractors who refuse to comply with the terms of their contract. However, if the covered contractor is making a good faith effort to comply, the Task Force encourages agencies to work with contractors to address challenges.
How do you go about implementing a mandatory vaccine policy?
As with implementing any new policy, it is best practice to create a written policy that is well thought-out and uniformly applied. The policy should clearly identify that accommodation requests will be considered and should indicate how to submit those requests. As with any request for accommodation, it will be up to the employer to engage in the interactive process with the employee to determine what, if any, accommodation the employer can provide. However, when a covered contractor employee is unvaccinated because of an accommodation, the contracting agency will determine the workplace safety protocols. In the majority of cases, that will entail following appropriate masking, physical distancing, and testing protocols.
Key Takeaways for Employers
Employers should determine whether they are covered by the Guidance as soon as possible and, if covered, promptly take steps to comply with the Guidance by January 4, 2022. The Task Force may update its Guidance periodically, so employers should regularly review and revise their policies in consultation with an attorney.
This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group, or the attorney with whom you normally consult.