Guidance from the Safer Federal Workforce Task Force
By Kevin M. Mosher • Sep 28, 2021
In early September, President Biden announced a COVID-19 Action Plan to increase the number of vaccinated Americans and end the COVID-19 pandemic. Part of this plan included issuing Executive Order 14042 titled “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” In it, the President ordered the Safer Federal Workforce Task Force (“Task Force”) to issue guidance regarding federal contractor obligations by September 24, 2021. Today we’ll be breaking down what exactly federal contractors will need to do to comply with EO 14042 and the Task Force guidance going forward.
How do I know if my federal contract is affected?
The Executive Order requires all federal contracts entered on or after November 15, 2021 to incorporate a clause requiring the contractor to comply with the Task Force’s COVID-19-related safety guidance, and it also applies to contracts entered into prior to October 15, 2021 in which performance is ongoing in the event an option to extend is exercised. The Executive Order does not apply to grants, agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act, contracts and subcontracts valued at equal to or less than the simplified acquisition threshold as defined by the Federal Acquisition Regulation (currently $250,000), employees who perform working outside the United States or outlying areas, or subcontractors who solely provide products.
If my contract is affected, what does this required contract clause need to include?
While there’s more than we can fit in a quick Tip of the Week, here are the most notable items covered contractors need to know:
All employees working in a covered workplace and/or on a covered contract must be fully vaccinated by December 8, 2021, unless they are legally entitled to an accommodation. Yes, you must require proof. No, weekly testing isn’t an option. Yes, this includes remote workers. Fully vaccinated means at least two weeks post shot. Employees who cannot get vaccinated due to a medical condition or sincerely held religious belief may seek accommodations, however it is up to the employer to determine what, if any, reasonable accommodation they can offer. Even employees who aren’t working on a covered contract are subject to the vaccine mandate if they are working at a covered worksite. However, employers can excuse these employees if they can show that there will be no interaction between them and employees working on the covered contract (think no shared spaces like lobbies, elevators, breakrooms, etc.). Employees who work indirectly on a covered contract, like those in billing, legal, or human resources, are still subject to the vaccine mandate if they perform duties necessary to the performance of the covered contract. Basically, the vaccine mandate is probably going to cover everyone if the employer works on covered federal contracts.
All individuals in a covered workplace must comply with guidance put forth by the Centers for Disease Control and Prevention regarding masking and social distancing. This applies to employees and anyone else who enters the covered workplace. In areas of high or substantial transmission rates, everyone must wear masks while indoors (with some limited exceptions), regardless of vaccination status. In areas of low or moderate community transmission, fully vaccinated employees do not need to wear masks indoors. Fully vaccinated individuals are not required to socially distance, but individuals who are not fully vaccinated are required to maintain six feet away from others at all times (to the extent practicable). Basically, covered workplaces need to make sure they have CDC compliant masking and social distancing policies.
Covered employers must designate a COVID-19 safety coordinator to implement and enforce COVID-19 safety policies and the vaccine mandate. This person is also responsible for communicating the necessary information to employees and ensuring proper signs are displayed notifying employees and any other individuals visiting a covered workplace of the employer’s COVID-19 related safety policies.
Of course! We’ll leave you with some other fun facts about the Executive Order and the Task Force’s guidance. The first fact is that subcontracts at all levels are also required to include one of these required clauses, meaning subcontractors at almost every level need to comply with the vaccine mandate, the COVID workplace safety policies, and the required COVID safety coordinator designation. The next fact is that no state or local law or ordinance can override these requirements (for example a state law prohibiting mask or vaccination mandates). Lastly, the guidance “strongly encourages” many other contracts not explicitly covered by the Executive Order to incorporate similar COVID-related clauses. Time will tell as to what, if any, effect this “strongly encourages” language may have. As always, Thompson Coe attorneys are available to help you navigate the everchanging legal landscape of the COVID-19 pandemic!
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