By now, most employers know that President Biden announced a national vaccine mandate for COVID-19. I wrote about his mandate and executive orders on September 9 here: President Biden Implements Vaccine Mandate One of President Biden’s orders directed the Federal Safer Workforce Task Force to develop guidance for federal contractor employees to get vaccinated. Today, the Task Force released that guidance, which can be found here: Guidance for Federal Contractors.
There is a lot to unpack in the guidance. And, to be clear, my practice focuses on employment law. I am working with my partners who specialize in the intricacies of government contracts. We will provide additional interpretations as we digest this material. In the interim, here are the big takeaways.
- “Covered contractor employees must be fully vaccinated no later than December 8, 2021.” President Biden’s executive order originally required that federal agencies place a clause in new/renewal/option contracts on or after October 15, 2021. This sentence (found on page 5 and reinforced on page 11) seems to go a step further. I think the Task Force is being intentionally vague here because it wants as many vaccines issued as quickly as possible. The next sentence of the guidance says: “After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded 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.” As I read those two sentences together, the federal government wants the vaccine clause put into new contracts/options/renewal and will start enforcing that clause on December 8. Additionally, my partners who specialize in government contracts question whether the government could unilaterally enforce a vaccine mandate without a contractual modification.
- Government contractors must appoint a person or persons to coordinate COVID-19 workplace safety efforts. This individual will have several responsibilities:
- They must communicate workplace safety protocols and policies by e-mail, websites, memoranda flyers or other means.
- They must post signage setting forth the requirements and protocols in a readily understandable manner.
- They must communicate safety protocols and requirements to all other individuals present at a covered workplace.
- They must ensure that employees comply with requirements for showing or providing proper vaccine documentation.
- Government contractors must review covered employees’ documentation to prove vaccinated status.
- It does not appear that contractors are required to keep a copy of vaccine documentation. Instead, employees are required to “show or provide” documentation.
- Employees can provide a digital copy such as a photograph or PDF of their record.
- The following documents “count” for documentation purposes: a copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020), a copy of medical records documenting the vaccination, a copy of immunization records from a public health or State immunization information system, or a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine.
- “A covered contractor cannot accept a recent antibody test from a covered contractor employee to prove vaccination status.”
- “An attestation of vaccination by covered contractor employee is not an acceptable substitute for documentation of proof of vaccination.”
- Local laws, like Alabama’s vaccine passport ban, mean nothing. “These requirements are promulgated pursuant to Federal law and supersede and contrary State or local law or ordinance.”
- Government contractors must enforce masking and monitor community transmission data at least weekly.
- The guidance follows current CDC requirements that in areas of high or substantial community transmission, fully vaccinated people must wear a mask in indoor settings. In areas of low or moderate community transmission, fully vaccinated people do not need to wear a mask.
- Contractors can only relax masking requirements when the level of transmission is reduced and remains “at that lower level for at least two consecutive weeks.”
- Contractors must check the CDC’s COVID-19 Data Tracker County View website at least weekly to determine the proper protocols. That Tracker can be found here: CDC COVID019 Data Tracker
- “Masks” are rigorously defined in the guidance. The following are NOT “masks”: masks with exhalation valves, vents, or other openings; face shields only (without mask); or masks with single-layer fabric or thin fabric that does not block light. Presumably, “gaiters” are not allowed.
- Covered contractor employees who have had a prior COVID-19 infection are required to be vaccinated. As I understand matters, there is some debate on whether a prior COVID-19 infection provides ongoing, natural immunity to the virus. In short, the federal government isn’t engaging in that debate.
- Employees who do not work directly on a federal contract must also be vaccinated. This guidance tries to capture as many contractor employees as possible with two requirements:
- Any contractor employee who performs work “in connection with” a covered contract must be vaccinated. This includes all employees 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, perform work in connection with a Federal Government contract.
- Any contractor employee must be vaccinated if they work in a “covered contractor workplace.” This means any location controlled by the contractor where an employee who works on, or in connection with, a covered contract is likely to be present.
- A covered workplace does not include an employee’s residence.
FREE VACCINE AND MASKING WEBINAR ON SEPTEMBER 28
Again, the foregoing points are just the highlights of the new guidance. Please read the entire guidance carefully. In a shameless plug, I can say that I am conducting a FREE WEBINAR on September 28 at 1:00 PM (CST) with my friend, Helen Holden, who practices employment law with Spencer Fane in Arizona. Helen is a Rock Star in the employment law world. Here is her web page: Helen Holden. Helen is the past Chair, and I am the Current Chair, of the Employment Practices Section of the Federation of Defense and Corporate Counsel. Here’s a link to the FDCC’s web page if you want to learn more about them: FDCC
I can promise that we will be talking in more detail about this guidance. If you would like to attend, please click on this link: FREE VACCINE/MASKING WEBINAR