On September 17, 2021, the Safer Federal Workforce Task Force (the “Task Force”) issued updated guidance (the “Guidance”) to federal agencies about COVID-19 safety protocols for employees of federal contractors and federal employees. While the Guidance is mostly targeted at COVID-19 vaccine and testing requirements for federal employees, there were several new and updated FAQs relating to federal contractors working on government sites.
This Guidance should not be confused with the guidelines that the Task Force will be issuing relating to President Biden’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Contractors, dated September 9, 2021 (the “Executive Order”). Those guidelines will be issued by September 24, 2021.
The requirements in this Guidance, however, will likely inform many of the COVID-19 safety protocols that the Task Force will require under the Executive Order. The Guidance includes the following requirements for contractor employees working at federal facilities:
- Agencies must have contractor employees complete a Certification of Vaccination Form (the “Certificate”), confirming whether they have been vaccinated, when they enter a “federal building or federally controlled indoor worksite.” The Certificate states that false statements could result in fines or imprisonment under 18 U.S.C. 1001 and removal of those employees from their positions or from the federal contract.
- Contractor employees must maintain a copy of their Certificate when at federal facilities in case they are asked to show proof of their vaccinated status.
- If the employee has not been fully vaccinated or declines to provide his or her vaccination status, they must comply with all of the following COVID-19 safety protocols while in a federal facility:
- Wear a mask regardless of the level of community transmission;
- Physically distance; and
- Provide proof of a negative COVID-19 test result from within the three-day period prior to entering a federal building or federally controlled indoor worksite; or
- Undergo regular testing pursuant to an agency testing program.
- Agencies will have discretion to determine what types of tests unvaccinated contractor employees can show to be admitted to a federal facility, provided that such test has been authorized by the FDA.
It is also noteworthy that the Task Force is encouraging federal agencies to insert vaccination requirements into contracts, even if they are not covered by the Executive Order. The Task Force provides the following in response to an FAQ:
Agencies are strongly encouraged to incorporate vaccination requirements into contracts that are not covered by Executive Order 14042, consistent with applicable law. This might include, for example, incorporating vaccination requirements into contracts in advance of when they are otherwise required by the Executive Order or incorporating requirements into contracts that are not covered by the Executive Order, such as contracts under the Simplified Acquisition Threshold. Implementation of such additional requirements should generally follow the Safer Federal Workforce Task Force’s guidance for implementing the vaccination requirement in Executive Order 14042.
It is unclear whether the Task Force is saying that federal agencies can incorporate the vaccine requirements for federal contractor employees working at federal facilities for all government contracts (even beyond those covered by the Executive Order) or whether the Task Force is urging federal agencies to apply the requirements of the Executive Order beyond the types of contracts that are covered by the language of the Executive Order. As discussed in our prior alert, the language of the Executive Order appears to limit its requirements to only federal contractor employees who work on or in connection with the following types of contracts entered on or after October 15, 2021:
- Procurement contracts for services, construction, or a leasehold interest in real property
- Contracts for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
- Contracts for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); and
- Contracts entered into with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.
Given the language in the Executive Order and the apparent focus of the Guidance on COVID-19 safety protocols for “onsite contractor employees,” it might be that the Task Force only intended to encourage agencies to incorporate into federal contracts and subcontracts vaccine requirements relating to contractor employees working on site rather than trying to expand coverage of the Executive Order. Unfortunately, the language in the FAQ is not clearly limited in that manner. We hope to have more clarity on this issue after the Task Force issues guidelines on the Executive Order.
For now, federal contractors and subcontractors should consider this Guidance in light of their COVID-19 policies and practices for their employees working onsite at federal facilities.