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This Client Alert outlines the critical points for government contractors to know about the Biden Administration’s executive order, regulations, and guidance addressing COVID-19 prevention measures in the workplace.

On September 9, 2021, President Biden issued Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO”), to promote the economy and efficiency in federal procurement by ensuring that certain federal prime contractors and subcontractors provide adequate COVID-19 safeguards to their workers performing on or in connection with a federal contract.[1] The EO provides that contractors comply with the guidance published by the Safer Federal Workforce Task Force (“Task Force”) and directs the Federal Acquisition Regulatory (“FAR”) Council to amend the FAR with new corresponding regulations.

September 24, 2021, and pursuant to the EO, the Task Force published its Guidance, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (“Guidance”).[2] As expanded below, the Guidance provides contractors with important definitions (including “covered contractor”), three sections of Guidance applicable to covered contractors, and a bevy of Questions and Answers (“Q&A”) that provide context and clarity on how, where, and when covered contractors are to implement the vaccine mandate and workplace safety measures in the provided Guidance.

On September 30, 2021, the FAR Council issued a memorandum entitled Issuance of Agency Deviations to Implement Executive Order 14042, along with the new FAR Deviation Clause, FAR 52.223-99, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (“FAR 52.223-99”).[3] Generally, the FAR Council’s memorandum directs agencies to either adopt FAR 52.223-99 or develop and implement its own class deviation to implement the Guidance.

The new FAR 52.223-99 clause provides that, “[t]he Contractor shall comply with all guidance, including guidance conveyed through Frequently Asked Questions, as amended during the performance of this contract, for contractor or subcontractor workplace locations published by the [Task Force] at https:/www.saferfederalworkforce.gov/contractors.” The clause also provides that prime contractors should flowdown the clause to “subcontracts at any tier that exceed the simplified acquisition threshold, as defined in Federal Acquisition Regulation 2.101 on the date of subcontract award, and are for services, including construction, performed in whole or in part within the United States or its outlying areas.”[4]

As noted above, the FAR clause requires contractors to comply with the Guidance (including the Frequently Asked Questions – Q&As) and flowdown the requirements to subcontractors. That said, compliance is by no means an easy measure. First, given that the Guidance (Q&As) appears to be going through a regular refresh, contractors must be aware of updates and respond accordingly. Second, several agencies have already issued class deviations that seemingly add to the compliance challenges that lie ahead.[5] For example, the General Services Administration class deviation is mandatory for existing government-wide acquisition contracts (“GWACs”) and the Federal Supply Schedule, including products (with limited exceptions), and may be included in contracts under the simplified acquisition threshold. The Department of Defense class deviation likewise expands upon the EO and may be included in solicitations and contracts that are under the simplified acquisition threshold and for the manufacturing of products. Thus, given the flexibility under these class deviations, contractors may be caught off guard if the requirements are included in solicitations or contracts that are otherwise exempted under the EO.

Below is a brief overview of the 14-page Guidance for government contractors.

The Guidance provides some important dates:

• October 15, 2021 – The key date after which solicitations and exercised options, extensions, or renewals of existing federal contracts must incorporate the new FAR clause, triggering a compliance obligation for the subject federal contractors. Agencies are “encouraged” to include the clause in contracts awarded between October 15, 2021 and November 14, 2021, unless the solicitation was issued on or after October 15, 2021.
• November 14, 2021 – The new FAR clause must be incorporated into all new covered contracts that are awarded on or after November 14, 2021.
• December 8, 2021 – The date on which covered contractors must require their covered contractor employees to be “fully vaccinated” (unless the employee is legally entitled to an accommodation).

The Guidance provides some key definitions to bear in mind (non-exhaustive):

• Covered contract – means any contract that includes the clause described in Section 2(a) of the EO, including procurement contracts for services, construction, or a leasehold interest in real property, and contracts covered by the Service Contract Act.
• Covered contractor – means primes and subcontractors at any tier who is party to a covered contract.
• Covered contractor employee – means 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, for example, human resources, billing, and legal personnel.
• Fully vaccinated – means two weeks after a person has received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine.

The phrase “in connection with” a covered contract is broad:

• Work performed in connection with a covered contract includes personnel in an indirect role such as the “human resources, billing, and legal” departments. (Q&A No. 17.)

The Guidance requires covered contractor employees to be fully vaccinated by December 8, 2021:

• Covered contractors must ensure that all covered contractor employees are fully vaccinated against COVID-19, unless the employee is legally entitled to an accommodation. Accommodations may be required because of a disability (medical conditions) or because of a sincerely held religious belief, practice, or observance. (Guidance No. 1.)
• A negative COVID-19 test is not a substitute for proving vaccination status. (Q&A No. 6.)
• No self-attestation on vaccine status. (Q&A No. 3.)
• Contractor employees who have had a prior COVID-19 infection must still get vaccinated. (Q&A No. 5.)

The Guidance requires all individuals in covered contractor workplaces to observe the Centers for Disease Control and Prevention (“CDC”) guidance on masks and physical distancing:

• Covered contractors must ensure that all individuals (including visitors) comply with published CDC guidance for masking and physical distancing at a covered contractor workplace. (Guidance No. 2.)

The Guidance requires covered contractors to designate a person to coordinate workplace safety efforts:

• Covered contractors must designate a person to coordinate the implementation of and compliance with the vaccine mandate and workplace safety measures. (Guidance No. 3.)

The Guidance covers small businesses and remote workers:

• Small businesses must comply with the Guidance. (Q&A No. 14.)
• Remote employees must comply with the vaccination requirement. (Q&A No. 11.)

The Guidance provides a phased approach:

• “Contracts awarded prior to October 15 where performance is ongoing – the requirements must be incorporated at the point at which an option is exercised or an extension is made.” (Q&A No. 12.)
• “New contracts – the requirements must be incorporated into contracts awarded on or after November 14. Between October 15 and November 14, agencies must include the clause in the solicitation and are encouraged to include the clause in contracts awarded during this time period but are not required to do so unless the solicitation for such contract was issued on or after October 15.” (Q&A No. 12.)

Takeaway

The Task Force’s Guidance is broad and covers a significant portion of contractor employees, including those that are not directly working on a government contract. Moreover, the compliance landscape is reminiscent of early Paycheck Protection Program loan activity, with regular FAQ updates for contractors to contemplate. In light of the compliance challenges that lie ahead, we provide a non-exhaustive list of practical steps for government contractors to consider in implementing the vaccine mandate and workplace safety protocols:

• Contractors must designate someone to oversee compliance efforts and begin the process of setting up internal policies and procedures related to the vaccine mandate and workplace safety measures under the Guidance.
• Contractors should prepare standard request forms for employees who request an exception to the vaccine mandate. Contractors should also take steps to educate their employees on the fact that even if they are entitled to an exception to the vaccine mandate, they must still comply with COVID-19 prevention measures required by the mandate (and its implementing regulations and guidance), CDC guidance, as well as those of state and local officials.
• Contractors should beware that the Guidance makes it clear that it is the contractor’s responsibility to determine whether the employee is entitled to an exception for health or religious reasons.
• Contractors should post visible signage at entrances to covered contractor workplaces regarding the vaccine mandate and workplace safety measures that are in place (including masking and physical distancing requirements) and to direct all questions to the designated compliance official. Contractors should also take additional reasonable steps to communicate their workplace safety measures to visitors prior to their arrival.
• Contractors must include the required clause into first-tier subcontracts, which requires subcontractors to comply with the Guidance, including the vaccine mandate and workplace safety measures therein. First-tier subcontractors are to flowdown the clause to their subcontractors. Further, current Guidance FAQs provide that contractors may assume ­– unless it has “credible evidence otherwise” – that their subcontractors are complying with the clause.
• The Guidance does not mention whether the added costs of implementing the vaccine mandate and workplace safety measures are allowable costs, thereby entitling contactors to an adjustment. In light of the uncertainty, contractors should set up charge codes relating to their compliance efforts and work with their legal teams to determine how upcoming contract modifications may impact their ability to recover additional costs.

[1] Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, 86 Fed. Reg. 50985 (September 9, 2021).

[2] COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, available at https://www.saferfederalworkfo... (last visited October 14, 2021).

[3] https://www.whitehouse.gov/wp-...

[4] COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.

[5] Agency class deviations include, for example, the Department of Defense Class Deviation, the General Services Administration Class Deviation, the Department of Justice Class Deviation, the Department of Homeland Security Class Deviation, and the National Aeronautics and Space Administration Class Deviation.

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For an analysis of how the Executive Order and Deviations apply to your contracts, employees, and workplaces, please reach out to a member of Maynard's Government Solutions Group.

Maynard Nexsen’s COVID-19 Coronavirus Task Force is closely monitoring all updates to pending legislation related to the COVID-19 pandemic. We are dedicated to providing client-focused services, and it is the goal of the Task Force to continue this level of service to each and every client as they face challenges about planning for and responding to the threats posed by the virus. If you have any questions, please reach out to your relationship partner or any of the attorneys serving on the Task Force.

This Client Alert is for information purposes only and should not be construed as legal advice. The information in this Client Alert is not intended to create and does not create an attorney-client relationship.

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