Vaccine requirements for federal contractors: The latest Task Force guidance basics

By Jeff Ellinport, Division Counsel

As anticipated in my last blog, on September 24, 2021, the White House’s Safer Federal Workforce Task Force issued its expected guidance implementing the vaccination requirements for federal prime contractors and subcontractors. This action was pursuant to Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors) that President Biden issued on September 9.

While the guidance directly answered some questions posed in my last blog, it also created others. Here are the basics.

Requirements

The guidance sets out three main requirements:

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

The first of these is the most consequential. There is no option for weekly testing in lieu of vaccination. Instead, contractors must require all covered employees to provide proof of full vaccination, except for those that are legally entitled to a medical exemption or because of a sincerely held religious belief. In short – no vaccination, no job. 

Covered contractor employees

The guidance defines a covered contractor employee to mean 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. Covered contractor, covered contract and covered contractor workplace are all defined in the guidance.

Covered employees include employees who are not directly engaged in performing the specific work called for by the covered contract, but who perform duties necessary to the performance of the covered contract. These duties extend to such work as human resources, billing and legal review.

Importantly, full-time remote employees are covered as well, if they are working on or in connection with a covered contract – even if they never set foot in a covered contractor workplace. 

Proof of vaccination

Federal contractors cannot rely on self-attestation by their employees of vaccine status. Instead, employees must provide one of the following documents:

• a copy of the record of immunization from a health care provider or pharmacy
• a copy of the COVID-19 Vaccination Record Card
• a copy of medical records documenting the vaccination
• a copy of immunization records from a public health or State immunization information system
• a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of the health care professional or the clinic site where the vaccine was administered.

Either paper or digital copies of such records, including photographs, scanned images, or PDFs are acceptable.

Implementation and flow down requirements

The FAR Council developed FAR clause 52.223-99 (Ensuring Adequate COVID-19 Safety Protocols for Federal Contactors) to support agencies in meeting the requirements of the Executive Order. Both GSA and the DoD have already drafted Class Deviations for implementation.

The FAR clause contains a mandatory flow down requirement in subcontracts at any tier that exceed the Simplified Acquisition Threshold (SAT) as defined in FAR 2.101 and are for services. The threshold is currently set at $250,000.

Accordingly, prime contractors must flow the clause down to first-tier subcontractors. Higher-tier subcontractors must flow the clause down to the next lower-tier subcontractor, to the point at which subcontract requirements are solely for the provision of products. 

That said, the Task Force strongly encourages agencies to incorporate a clause requiring compliance with the guidance into contracts that are not covered or directly addressed by the Executive Order. This includes contracts below the SAT or a contract or subcontract for the manufacturing of products.

The Federal Acquisition Service (FAS) has already issued a memorandum requiring FAS COs to incorporate the new FAR clause in all Federal Supply Schedule (FSS) contracts above the micro-purchase threshold (currently $10,000). This includes contracts solely for products. Thus, it will likely be difficult for subcontractors to rely on the products exception set out in Executive Order 14042. 

Timing

Covered contractor employees working on a covered contract need to be fully vaccinated after December 8, 2021. People are not considered fully vaccinated for COVID-19 until two weeks after they have received the second dose in a two-dose series or two weeks after they have received a single-dose vaccine. It could take up to a month for employees to become fully vaccinated, so there is little time to waste.

By October 8, 2021, the Federal Acquisition Regulatory Council must amend the FAR to include the contract clause to implement the requirements of the EO and the Task Force. Contractors should expect to see the new FAR clause in covered contracts no later than October 15, 2021.

What to do

Prime contractors and subcontractors in the Federal Government’s supply chain should start planning now for how to implement the foregoing requirements, to reach full compliance by December 8, 2021. This should include communicating to the workforce about the requirements, setting up a process to verify vaccination status (and exemptions), assisting its unvaccinated employees in obtaining vaccines, and, potentially, planning for some level of attrition. 

Because these requirements involve many complex legal issues, contractors should consult with legal counsel in developing their policies, procedures, and communications.

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