On September 9, 2021, President Biden issued Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (EO) and the Safer Federal Workforce Task Force issued COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Guidance) on September 24 to:
- implement programs requiring COVID-19 vaccinations for all federal employees, with exceptions only as required by law
- ensure that contracts, and contract-like instruments, include a clause requiring contractors to comply with all guidance, for the duration of the contract
These FAQs address new EO and Guidance
- Which contracts are covered?
The definition of which contracts or similar agreements broadly includes all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing.
All contracts or similar agreements for services and construction:
- a procurement contract for services (includes research and development), construction, or a real property leasehold interest
- a contract for services covered by the Service Contract Act
- a contract for concessions
- contract in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public
The following are the only explicit exclusions:
- contracts with Indian tribes
- contracts with a value equal to or less than the simplified acquisition threshold (generally $250,000)
- contracts if employees who work outside the United States
- subcontracts solely for the provision of products
The Guidance extends coverage to all subcontracts at all tiers and does not exempt commercial items, COTS, small businesses or other nontraditional defense contractors.
The Guidance and Contract Letter strongly encourage application of the mandate to contracts valued below the simplified acquisition threshold and in contracts for manufacturing or supplies.
- Which employees must be vaccinated?
All “Covered Contractor Employee” must be vaccinated which includes:
- full-time or part-time employee of a covered contractor
- working on or in connection with a covered contract even if
- work remotely, and never come to the office
- not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review
- working at a covered contractor workplace
- at a given building, facility, or campus controlled by the contractor
- if any employee working on or in connection with a covered contract is likely to be present to include hallways, elevators, parking lots, security checkpoints, and similar areas
- Whether working indoors or outdoors
- May employees be tested instead?
- Which exemptions apply?
If employer is required to grant an exemption due to a disability or sincerely held religious belief, practice or observance, but only if the employee is legally entitled to the accommodation. Contractors must ensure any exemption complies with applicable laws.
There is no exemption for a positive antibody test or proof of having had COVID-19 already.
Agencies may elect to exempt specific contracts or individuals for a temporary period of time if the agency has an “urgent and critical need” for work to begin immediately. Contractors should not rely upon this exemption as it will most probably be interpreted strictly.
- What other requirements apply?
Contractors must also comply with the Masking and Physical Distancing guidelines issued by the CDC. For fully vaccinated workers
- In areas of high or substantial community transmission (https://covid.cdc.gov/covid-data-tracker/#county-view), individuals must wear a mask indoors with certain limited exceptions (such as sitting alone in an enclosed space or when eating or drinking)
- Social distancing is not required
Contractors should communicate requirements to visitors prior to arrival. Visitors and guests to a contractor’s work location who are unvaccinated or whose vaccine status is not known must wear a mask and comply with all the CDC guidelines for social distancing.
The Guidance encourages Contractors to post information on safety protocols for fully vaccinated and not fully vaccinated individuals at entrances.
- Do I have to have a designated lead?
Contractors must designate at least one person to coordinate implementation of and compliance with the Guidance’s protocols. These obligations include reviewing applicable documentation, ensuring covered contractor employees understand the requirements and are fully vaccinated, and ensuring employees comply with the requirements.
- How will this be implemented?
On September 30, the Civilian Agency Council issued a Contract Letter authorizing agencies to issue class deviations to implement the EO and Guidance. The Contract Letter includes a clause and guidance for when the clause applies. The sample clause essentially links back to the current and any future versions of the Guidance.
On October 1, the General Services Administration, the Department of Defense, and the Department of Veterans Affairs issued their respective class deviations. Not unexpectedly, the agencies are implementing the COVID-19 Vaccine with slightly different rules. They are encouraging the inclusion of the clauses even when not required, which means contractors may have different requirements based upon the agency and the contracting officer.
Items of Note in the class deviations:
- Contracting officers are encouraged/required to try to modify existing contracts and multiple award agreements.
- Expect that any options, task orders, modifications will be on hold pending acceptance of this clause.
- For existing contracts, the modification shall be bilateral.
- GSA will include the clause in all even if only for supplies Federal Supply Schedules, Government-wide Acquisition Contracts, Multi Agency Contracts, and Agency-specific indefinite delivery vehicles.
One good note is that the inclusion of the clause will be explicitly addressed in the contract. I feared that that government would try to include through the various policies incorporated by reference for accessing a government facility. Contractors may be able to recover costs for these changes – see Question 12.
- What is the deadline?
All Covered Contractor Employees must be fully vaccinated by December 8, 2021
The requirement will be incorporated in Covered Contracts awarded on or after November 14, 2021. For existing contracts, agencies must incorporate the requirement when an option is exercised, the contract is renewed, or the contract is modified. Agencies are encouraged to incorporate the requirement sooner.
- How do I verify vaccination status?
Review each employee’s vaccine documentation to include:
- record of immunization from a health care provider or pharmacy
- COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020)
- medical records documenting the vaccination
- immunization records from a public health or State immunization information system
- 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.”
The Guidance provides that the employers can accept digital copies of any of the records to satisfy their obligations, but an employee’s self-attestation is not sufficient.
Employees who have lost their proof of vaccine must obtain a replacement copy from their provider or the State or local health department.
- Which records must I retain?
While not explicitly required to retain a copy of the proof of vaccine, Contractors should retain some documentation to document what was reviewed.
- How do I charge?
Any charging or cost compliance rules will follow your standard processes; i.e. there are no unique charging requirements for this clause. Some general guidelines:
- Follow your internal procedures for determining whether you can allocate the costs direct to one or more contracts or as an indirect cost.
- Establish adequate procedures to track any specific time or costs to this new requirement.
You may be able to recover increased costs on existing contracts if you follow the modification process and can justify your increased costs.
When you receive the modification, review it carefully and watch for any release of claims language. If you sign the modification with a release of claims, you are effectively waiving your right to an equitable adjustment. Your options include not signing the modification until you have negotiated a new price or revising the release of claims to exclude price.
To justify your cost impacts, set up separate charge for time spent to obtain vaccines, track vaccination status, and educating employees and for expenses incurred.
For procurements in which a proposal has been submitted but a contract has not been awarded, monitor any changes to the solicitation and review the final contract for the new clause. If the agency modifies the solicitation, you will need to include any cost impacts in your updated proposal. Once you sign the contract with the requirement, you will not be able to obtain a price adjustment.
- What must I do with my subcontractors?
You will need to include the clause in all subcontracts for services and construction within the United States if the value of the subcontract exceeds the simplified acquisition threshold at the time of award.
If you are the prime and work will be performed by you or any subcontractor within a Federal facility, you should obtain a statement of vaccination status from subcontractors at all tiers for their covered employees. The Government may require such a statement for any contractor employees working within their facilities.
If subcontractors are working in your facilities even if not for performing a government contract, you are encouraged to require that their personnel be fully vaccinated and ensure they comply with the masking and social distancing requirements.
- What resources exist to support me?
Everyone is trying to understand the changing requirements and establish acceptable practices during this time of change and uncertainty. If you have additional questions, you can review the Federal government websites: www.saferfederalworkforce.gov/faq/vaccinations and https://www.saferfederalworkforce.gov/faq//. You can also consult with your local Procurement Technical Assistance Center, human resources expert or government contracts lawyer.
- Is asking my employees to provide proof of their COVID-19 vaccination status a violation of the employee’s HIPPA rights?
No, per the guidance provided by the U.S. Department of Health and Human Services, the HIPAA Rules do not apply to employers or employment records. HIPAA only applies to HIPAA covered entities – health care providers, health plans, and health care clearinghouses – and, to some extent, to their business associates. Additionally, HIPAA does not regulate covered entities’ abilities to request information from patients and visitors. Rather, it regulates how the covered entities use this information. A business associate may also inquire about vaccine status but could be regulated in how they share that information. HIPAA generally does not apply to employers or employment records. If an employer asks an employee to provide proof that they have been vaccinated, that is not a HIPAA violation, and employees may decide whether to provide that information to their employer.
- May I share employee vaccine status with government, higher-tier primes?
Yes, upon the request of the higher-tier primes and other government agencies, you can share the vaccine status of your employees through the completion of a statement of vaccination status. However, a subcontractor should not be asked to provide proof of vaccination beyond an attestation of vaccination status. The Prime contractor can assume the subcontractor is complying with the clause unless the prime contractor has credible evidence otherwise.
Prior to contractor employees being subject to a contractual requirement to be vaccinated, onsite contractor employees need only attest to their vaccination status using the Certification of Vaccination form.
For onsite contractor employees who are not yet subject to a contractual requirement to be vaccinated, agencies should not ask them for documentation to verify their attestation. When a contractor employee discloses that they are unvaccinated or declines to complete the attestation, agencies should treat that individual as not fully vaccinated for purposes of implementing safety measures.
If the agency has reasonable grounds to believe that an onsite contractor employee made a false statement on the Certification of Vaccination form, the agency may require that the contractor verify the contractor employee’s vaccination documentation and confirm to the agency that the employee has been vaccinated, as part of the agency’s review of the matter. If an onsite contractor employee who has attested to being vaccinated exhibits symptoms of COVID-19 illness, the agency should apply its safety protocols, but this is not an appropriate reason to request documentation to verify vaccination status
- What if my state law conflicts with the mandate?
States have broad authority under the Constitution to issue vaccine mandates. The U.S. Constitution’s Supremacy Clause indicates that federal law overrides conflicting state laws. However, gray areas within the state laws and federal rules would likely need to be resolved in state courts and possibly the Supreme Court. If your state law prohibits you from asking about vaccine status or requiring vaccination, then you should consult a lawyer in that state. Additionally, a federal law cannot be used to ignore a more stringent or more narrowly tailored state law.
- May I terminate employees who refuse?
Yes, after a period of counseling and or suspension. Employees covered by Executive Order 14043 who fail to comply with a requirement to be fully vaccinated or provide proof of vaccination and have neither received an exception nor have an exception request under consideration, are in violation of a lawful order. Employees who violate lawful orders are subject to discipline, up to and including termination or removal.
Consistent with the contractor’s policies, Safer Federal Workforce recommends that contractors initiate an enforcement process to work with employees to encourage their compliance. Accordingly, agencies should initiate the enforcement process with a brief period of education and counseling (5 days), including providing employees with information regarding the benefits of vaccination and ways to obtain the vaccine. If the employee does not demonstrate progress toward becoming fully vaccinated through completion of a required vaccination dose or provision of required documentation by the end of the counseling and education period, it should be followed by a short suspension (14 days or less). Continued noncompliance during the suspension can be followed by proposing termination. If an employee responds at any phase of the discipline by submitting proof of progress toward full vaccination (i.e., completion of a required vaccination dose), the agency should hold the discipline in abeyance to afford the employee a reasonable period of time to become fully vaccinated.
- Are terminated employees entitled to Unemployment Benefits?
Covid-19 related policies are likely to be treated like any other employer policies. Employees who are terminated for failing to adhere to a company’s policies without an exemption or legitimate reason may be denied unemployment benefits. The answers depend on state laws and many other facts specific to each employee. However, in many states, a person who was terminated for “just cause” or for misconduct may be denied benefits. It’s recommended you consult with a labor law attorney or human resources consultant in the applicable state.
- How do I review and approve exemptions for disability or religious beliefs?
In considering requests for accommodation, you should determine whether you are covered by the ADA, Title VII, or the Rehabilitation Act of 1973. All employers, including state and local government employers, with 15 or more employees are covered under the ADA and Title VII. You should also ensure that a policy and procedure exists for handling accommodation requests.
In general, requests for accommodation should be directed to an appropriate HR representative or other designated person who is trained regarding the importance of keeping requests for accommodation confidential and the keeping any medical information obtained in a separate medical file.
The request will trigger and “interactive process” which may include asking an employee to complete a request for accommodation. Contractors can refer to the following templates, provided on Safer Federal Workforce to develop a form for employees who are seeking an exception based on a medical condition or based on religion. The information on the forms may be used by the agency to help determine whether the employee is entitled to an accommodation.
The agency may also ask for other information as needed to determine if the individual is legally entitled to an accommodation. Agencies should consult with their senior agency official for privacy and their office of general counsel to address all legal considerations and privacy requirements in developing their forms, including but not limited to an appropriate Privacy Act Statement. Agencies should comply with any applicable recordkeeping and other requirements.
Upon reviewing the request for accommodation, it can be accepted or denied based on the information presented or determined to be an “undue hardship” on the operation of the agency. The standard for “undue hardship” differs depending on whether the accommodation is for disability or religion. When evaluating undue hardship for a disability or medical condition, it may be an “undue hardship” if accommodating the disability or medical condition would be unduly costly. The EEOC’s recent guidance provides that accommodating a religious belief may be an “undue hardship” if it compromises workplace safety or infringes on the rights of other employees.
If a request for accommodation is accepted, the employees would need to follow applicable masking, physical distancing, and testing protocols for individuals who are not fully vaccinated, as well as applicable travel guidance. Additional guidance will be forthcoming regarding testing protocols for individuals who are exempted from the vaccination requirement.
If the request for accommodation is denied, contracting Agencies should require that an employee receive their first (or, if a one-dose series, only) dose within two weeks of the final determination to deny the accommodation. If receiving a two-dose series, the employee must receive the second dose within 6 weeks of receiving the first dose.
If the employee received a first dose of a two-dose series prior to seeking an accommodation, agencies should require that the employee receive their second dose within two weeks of the final determination to deny the accommodation or within a week of the earliest day by which they can receive their second dose, whichever is later.
*The material contained in this document has been authored or gathered by members of the GovCon Alliance for informational purposes only. It is not intended to be and is not considered to be legal advice. Transmission is not intended to create and receipt does not establish an attorney-client relationship. Legal advice of any nature should be sought from legal counsel. Some of the content in this publication may be considered attorney advertising under applicable state laws.