Vaccine Mandate for Government Contractors: Guidance and FAR Class Deviation Bring Clarity and Questions

What to Know

• On September 9, 2021, President Biden signed Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” that directed agencies to include a clause in new contracts, options, and extensions requiring compliance with safety standards promulgated by the Safer Federal Workforce Task Force.
• On September 24, 2021, the Safer Federal Workforce Task Force published its Guidance for Federal Contractors and Subcontractors that set forth the requirements for a covered contractor.
• The Task Force Guidance mandates vaccination for almost all employees that perform services under a covered contract (even if they perform work entirely remotely), perform administrative and back-office work supporting a covered contract. (such as human resources, billing, and legal review), or work at a location where employees performing such services also work. Exceptions are permitted only for disability or sincerely held religious beliefs where required by law under the ADA or Title VII.
• Covered contractor employees must be fully vaccinated no later than December 8, 2021 or by the first day of the period of performance on a newly awarded covered contract after that date, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.
• On September 30, 2021, the FAR Council issued a class deviation requiring the insertion of a new clause, FAR 52.223-99, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (Oct 2021) (Deviation) in contracts extended after October 15, 2021 or awarded after November 14, 2021.  
• The clause mandates compliance with the Task Force Guidance and is a mandatory flow-down for services subcontracts over $250,000. The clause is not required where the contract or subcontract is under the simplified acquisition threshold or is a contract or subcontract for the manufacturing of products.

Recent Actions Provide Clarity

As described in our earlier alert, President Biden’s executive order regarding federal contractor COVID safety left key requirements (including details as to any vaccination mandate) to be established in the subsequent Task Force Guidance and contract clause. With the recent publication of both the Task Force Guidance and a FAR class deviation, federal contractors now have greater clarity as to whether the clause applies to them and what they must do.

The Task Force Guidance requires contractors to follow three primary workplace safety protocols:

1. COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation based on disability or religion;
2. Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces; and 
3. Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts and covered contractor workplaces.

A “covered contract” is essentially any services contract over $250,000. However, the Task Force Guidance “strongly encourages agencies to apply the requirements of its guidance broadly, consistent with applicable law,” by including the clause in other contracts, including contracts for supplies and contracts at or below $250,000. Per the Biden EO, grants are specifically excluded.

A covered contractor employee is “any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace.” Employees working “in connection with” a covered contract include those who perform duties necessary to the performance of the covered contract but who are not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review. In addition, even employees who provide work on the covered contract working remotely are required to be vaccinated. A covered contractor workplace is “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 of performance for a covered contract.”

Based on these definitions, the vaccination mandate applies broadly to employees that work on covered federal contracts, those that work at the same location as those that work on covered federal contracts, and those that perform back-office and administrative support services for those who work on covered federal contracts. While an employee’s residence is not considered a covered contractor workplace location, employees who perform their work entirely remotely remain covered by the vaccination mandate. The mandate does not apply to employees who perform work exclusively outside the United States. 

The only accommodations referenced in the Task Force Guidance are those required by law because of disability or “sincerely held religious belief, practice, or observance.” 

Contractors are required to review their covered employees’ documentation to prove vaccination and are not permitted to substitute vaccination with evidence of a prior COVID-19 infection or a recent negative COVID-19 test, even if the forthcoming Occupational Safety and Health Administration Emergency Temporary Standards allow for such alternatives. 

The Guidance does, however, allow that a contractor may limit covered contractor employees to a single building site, or facility if it can “affirmatively determine” that none of its employees at one site will come into contact with employees at another site during the period of performance, including in interactions through the use of common areas such as lobbies, security clearances areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages. This may incentivize some employers to effectively separate their employees who work on or support covered federal contracts from those who work on other contracts.

In terms of timing, the Task Force Guidance initially requires covered contractor employees to be fully vaccinated no later than December 8, 2021. If a contract is extended or renewed after that date, covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract. While the head of an agency may approve delayed implementation in limited cases where there is an “urgent, mission-critical need” to being work before having all covered employees fully vaccinated, the covered contractor must ensure these covered contractor employees are fully vaccinated within 60 days of beginning work on a covered contract or at a covered workplace. 

The Task Force Guidance also lays out the policies for wearing masks, requiring masks, and physical distancing for employees who are not fully vaccinated. Those that are fully vaccinated are not subject to physical distancing restrictions and need only wear a mask indoors in areas of high or substantial community transmission. Exceptions to the masking requirements are permitted consistent with CDC guidance, such as where an individual is alone in an office with a closed door or for a limited time when eating or drinking, provided that social distancing is maintained. Notably, face shields are not a permitted substitute for masks. 

An individual is considered fully vaccinated two weeks after completing an FDA- or WHO-approved or authorized vaccine, including Pfizer, Moderna, J&J, and AstraZeneca. The Guidance does not impose a post-vaccination time limit on fully vaccinated status, but states that should such a limit be determined by the CDC, then the Guidance may be updated, leaving open the question as to whether booster shots will become required in order to be or remain fully vaccinated. 

Lastly, the Task Force Guidance requires covered contractors to designate a person or persons to coordinate compliance with the Guidance and the workplace safety protocols detailed therein. This includes communicating the required workplace safety protocols and related policies by email, websites, memoranda, flyers, or other means and posting signage at covered contractor workplaces, and ensuring the proper wearing of masks required. 

Yet Questions Remain
While the Task Force Guidance does provide some clear policy prescriptions in some areas, it leaves other portions subject to interpretation. Key questions may include:

• Is a corporate officer of a company who only deals with matters at a high and aggregate level considered an employee who performs work “in connection with” a covered contract? 
• What is required for a contractor to “affirmatively determine” that none of its employees at one site will come into contact with employees at another site during the period of performance? 
• Is separating covered federal contractor employees sufficient to preclude other areas of the building or site from being deemed a covered contractor workplace? 

FAR Class Deviation Prescribes Clause
The FAR Council’s class deviation prescribes the insertion of a new contract clause at FAR 52.223-99, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors, in the following covered contracts:

• New contracts awarded on or after November 14 from solicitations issued before October 15 (this includes new orders awarded on or after November 14 from solicitations issued before October 15 under existing indefinite-delivery contracts);
• New solicitations issued on or after October 15 and contracts awarded pursuant to those solicitations (this includes new solicitations issued on or after October 15 for orders awarded pursuant to those solicitations under existing indefinite-delivery contracts);
• Extensions, renewals, or exercise of options on existing contracts and orders awarded on or after October 15, 2021.

The class deviation acknowledges E.O. 14042 does not apply to existing contracts, contracts or subcontracts for the manufacturing of products, and those that are under the simplified acquisition threshold ($250,000), but reiterates the Task Force Guidance that “strongly encourages agencies to apply the requirements of its guidance broadly, consistent with applicable law, by including the clause in such contracts nonetheless.” 

Notably, the clause’s text does not attempt to restate the Task Force Guidance, but instead simply refers back to the Task Force Guidance as currently available on the Task Force website. The clause specifies that it is only a mandatory flow down to subcontracts (at any tier) over the SAT for “services” that are performed in the United States or its outlying areas.

Subsequently, on October 1, 2021, the Department of Defense issued its own class deviation for the Defense Federal Acquisition Regulation Supplement (DFARS), prescribing the use of a clause under DFARS 252.223-7999 that is substantively identical to the FAR clause.

The memorandum accompanying the DFARS class deviation does provide some additional color, however, noting that to the extent a contracting officer wishes to insert the clause into existing contracts, task orders, or delivery orders, the CO must do so through a bilateral modification. Thus, the inclusion of the clause in existing contracts is a matter of negotiation between the contractor and the government. Such negotiation could, at least theoretically, include a modification to account for the increased costs of compliance with the clause. Alternatively, contractors may simply opt not to agree to the inclusion of the clause under any circumstance.