Note: As of Nov. 15, 2021, the deadline for compliance with the vaccine mandate for federal contractors has been extended to Jan. 18, 2022. All references to compliance deadlines have been updated.

As a part of U.S. President Joseph Biden’s recently released COVID-19 “Path out of the Pandemic” action plan, Biden issued an Executive Order directing his Safer Federal Workforce Task Force (the Task Force) to publish guidance that expands the reach of his July Executive Order (the Order) to now encompass mandatory vaccinations and COVID-19 protocols aimed at protecting not only federal government agency employees, but also certain federal contractors and subcontractors.

After determining that your business is subject to the mandate, it’s critical to review the mandate’s necessary compliance elements and key points as well as work to understand the steps required to meet the mandate’s compliance deadlines.

What are the specific mandates?

The Task Force’s COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (the Guidance) sets forth three workplace safety protocols that federal contractors and subcontractors with a covered contract will be required to implement in their respective workplaces:

1. COVID-19 vaccinations are required of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;
2. Masking and physical distancing are required for all covered contractor employees or visitors while in covered contractor workplaces; and
3. Covered contractors must designate a person(s) to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

Vaccine mandate details: What you need to know

The following are key points from Biden’s vaccine mandate for covered federal contractors and subcontractors:

• Covered contractor employees need to be vaccinated by Jan. 18, 2022: Generally, all covered contractor employees are required to be fully vaccinated by Jan. 18, 2022, or on the first day of performance on a newly awarded or exercised option or extended or renewed covered contract containing the required contract language. Exceptions include employees who are legally entitled to an accommodation due to a disability and sincerely held religious beliefs, practices or observances. The Guidance makes it the employer’s responsibility to determine whether an accommodation should be granted and what accommodations should be made, in accordance with existing federal law.
• What are “covered contractor employees”: The term “covered contractor employees” encompasses “full and part-time employees of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.” This definition is broad enough to reach the following full- or part-time employees of a covered contractor who:
  1. Perform work on a covered contract: Employees who work directly on a covered contract.
  2. Perform work “in connection with” a covered contract: FAQ 17 explains that “in connection with” encompasses any employee who performs duties that are necessary to the performance of the covered contract, but not directly involved with performance under the covered contract, and then gives examples, such as human resources, billing and legal review; or
  3. Perform work at a “covered contractor workplace,” regardless of whether the work performed is in connection with or in support of a covered contract: The term “covered contractor workplace” is defined by control of the location by a covered contractor and, encompasses not just a location where the covered contractor employee will or is performing work, but rather where any of the employees of a covered contractor “is likely” to perform work on a covered contract or in connection with a covered contract. Notably, under the Task Force’s definition, employees who are not working on or in connection with a federal contract are nonetheless required to comply with the mandates if they share a workspace with another employee who is working on or in connection with a federal contract or subcontract. The guidance also applies to contractor or subcontractor workplace locations that are outdoors.
• Remote contractor employees are covered: The vaccination mandate includes contractor employees who work remotely. This is true even if the employee never works at either a covered contractor workplace or federal workplace during the performance of the contract.
• No COVID-19 testing alternative: The Guidance does not provide for a COVID-19 testing option as an alternative to mandated vaccination status.
• On-site vaccination clinics are not required, but general information on obtaining vaccines must be provided: Although on-site clinics are not required, employers may offer them and should make information available as to convenient locations to receive the vaccination.
• Federal agencies have wiggle-room on vaccine mandate for “mission critical” work: Exceptions may be approved for federal agencies with an immediate “mission-critical” need for covered contractor employees who are not yet fully vaccinated to perform work. The agency head must approve the exception and the employees must still satisfy full vaccination status within 60 days of beginning work on the covered contract.
• Verifying vaccination status of covered contractor employees is a three-step process:
  1. Covered contractors must require all covered employees to show or provide proof of vaccination status: Acceptable forms of proof are similar to other guidance and includes a copy of the U.S. Centers for Disease Control and Prevention’s (CDC’s) COVID-19 Vaccination Record Card, a copy of medical records from heath care provider or pharmacy, and digital forms of proof.
  2. Covered contractors must review their covered employees’ documentation to prove vaccination status: There is no further description provided on the extent of review required.
  3. Covered contractors “shall ensure” compliance with the foregoing requirements: There is no further description provided on what is expected of covered contractors to satisfy this last requirement.

What about masking and physical distancing mandates?

Here is how Biden’s vaccine mandate for federal contractors impacts masking and physical distancing mandates:

• The mandate does not take the place of current CDC guidance for masking and physical distancing: For example, individuals are directed to follow CDC’s guidance for mask wearing and physical distancing in specific settings, including health care, transportation, correctional and detention facilities, and schools.
• Covered contractors “must ensure” that all individuals comply with the Guidance: This includes, but is presumably not limited to, ensuring covered contractor employees and visitors comply with the Guidance and the CDC’s guidance for masking and physical distancing at a covered contactor workplace. Notably, FAQ 11 makes clear that this mandate does not extend to an employee’s place of residence if working remotely.
• Masking requirements are specific in the Guidance, but consistent with CDC guidance:
  1. In areas of high or substantial community transmission, fully vaccinated individuals must wear a mask in indoor settings with limited exceptions;
  2. Individuals who are not fully vaccinated must wear a mask indoors and in crowded outdoor settings or during outdoor activities that involve sustained close contact with other people who are not fully vaccinated, regardless of the level of community transmission in the area;
  3. Covered contractors are required to check the CDC COVID-19 Data Tracker County View website for community transmission information in all areas where they have a covered contractor workplace at least weekly;
  4. Covered contractors must require individuals in covered contractor workplaces to wear a mask in an appropriate manner and at the appropriate places, e.g., mask covering the nose and mouth at all times while in common areas; and
  5. The same noted masking mandate accommodations apply, so covered contractors should review and consider what, if any, accommodations they must offer.
• Additional exceptions to the masking and physical distancing requirements are noted in the Guidance and defer to the CDC guidelines: For example, an exception may be made in a situation where a workplace risk assessment has been conducted and it was concluded that wearing a mask would create a risk to the workplace health and safety. However, the Guidance includes an additional step that must be taken by covered contractors that, as of this writing, has not been required by the Occupational Safety and Health Administration (OSHA) or the like: Any exceptions must be approved in writing by a duly authorized representative of the covered contractor.

Designating a COVID-19 workplace safety coordinator

The following are key points federal contractors and subcontractors need to know about designating a COVID-19 workplace safety coordinator:

• Covered contractors must designate a person (or persons) who is responsible for coordinating, implementing and ensuring compliance with the Guidance and applicable workplace safety protocols for covered contractor workplaces: The COVID-19 coordinator that employers likely have had in place since the beginning of the pandemic can serve as the designated workplace safety coordinator for purposes of the Guidance.
• The Guidance provides few specifics on what coordination, implementation or specific steps must be taken to “ensure compliance”: Aside from these three requirements, no other specifics are provided:
  1. The coordinator must “ensure” that information on required COVID-19 workplace safety protocols is provided to covered contractor employees and visitors who are “likely” to be present at covered contractor workplaces.  Examples provided, include: communicating the required workplace safety protocols and related policies by email, websites, memoranda, flyers or other means, which entail not only the vaccine mandate but also masking and physical distancing requirements. 
  2. The coordinator must also ensure that covered contractor employees comply with the requirements in the Guidance related to showing or providing proper vaccination documentation.
  3. FAQ 1 also mentions to post signage at entrances to covered contractor workplaces providing information on safety protocols applicable to fully vaccinated and not fully vaccinated individuals.

Ramifications of noncompliance with Biden’s vaccine mandate

The Order and Guidance are silent on the penalties associated with an outright refusal to comply with the Order or other violations of the Order. This will likely be addressed by the federal agencies who have contracts that are covered by the Order. If Biden’s comments during the press conference announcing his Pathway out of the Pandemic Plan are any indication, consequences may include federal agencies terminating contracts with prime contractors for noncompliance with the Order and the Guidance.

Key takeaways

If your business is covered by Biden’s vaccine mandate for federal contractors and subcontractors, here are three steps you should take today:

1. Meet with your COVID-19 team: Now is the time to prepare and the first step is to meet with your COVID-19 team responsible for implementing current COVID-19 protocols to discuss who will be the designated Federal Contract COVID-19 Coordinator.
2. Identify covered employees: Identify current employees who fall within the scope of “covered employees” and then identify where those employees perform work on the covered contract. This will help determine which mandates apply to various work sites.
3. Discuss a preliminary implementation plan: While you may need to adjust the plan based on other directives from a federal agency or covered primary contractor, get started with discussing these potential components:
   • Identification of the most efficient and effective method of reviewing proof of vaccination status and develop protocols related to collection of that data for covered employees and visitors to a covered contractor workplace, taking into consideration confidentiality and record-keeping practicalities;
   • Development of consistent steps to be taken when an employee makes an accommodation request, including method of notification, method of follow up, forms to be completed and documentation confirming review (conferring with legal counsel is highly recommended for this particular step);
   • Development of consistent steps to be taken when exceptions to the masking and personal distancing requirements are warranted consistent with the CDC guidelines;
   • Creation of signage for any covered contractor workplace that places both covered employees and visitors of the new protocols;
   • Draft communication to covered employees notifying them that they will be subject to the new COVID-19 Covered Federal Contractor protocols and what those are for the covered employee; and
   • Draft communication to visitors that are likely to visit your covered contractor workplace notifying them that they will be subject to the new COVID-19 Covered Federal Contractor protocols and how those new protocols apply to visitors.

For more information this topic, or to learn how Godfrey & Kahn can help, contact a member of our Labor, Employment & Immigration Law Practice Group.