By Sara J. Ackermann and Nicole L. Stangl
September 24, 2021
On Friday, September 24, 2021, the Safer Federal Workforce Task Force (Task Force) issued its COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Guidance) as directed by President Biden in an executive order (EO) on September 9, 2021. Click here to see the full Guidance (a helpful FAQ starts on page nine of the Guidance.)
Who: According to the Guidance, a “covered contract” is any contract or contract-like instrument that includes the clause specified in Section 2(a) of the EO:
The contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance or Guidance).
A “covered contractor” is a prime contractor or subcontractor at any tier who is a party to a covered contract. Section 5(a) of the EO specifies the types of contracts that will be required to comply and importantly in Section 5(b) excludes specific types of contracts.
When: 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. 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.
COVID-19 Vaccination Mandate: Covered contractor employees must be fully vaccinated no later than December 8, 2021. This requirement even applies to employees working on a covered contract from home. Employees must provide proof of vaccination via acceptable documentation, including but not limited to, a copy of the COVID-19 Vaccination Record Card. However, an employee’s attestation of vaccination is not sufficient.
Masking & Physical Distancing: The Guidance requires implementation of masking and physical distancing measures at a covered contractor’s workplace in compliance with the CDC’s guidance. Fully vaccinated individuals do not need to physically distance, however, individuals who are not fully vaccinated should maintain a distance of at least six feet from others at all times. It is the covered contractor’s duty to check the CDC COVID-19 Data Tracker County View website weekly to ensure proper workplace safety protocols. If the community transmission level is lowered to moderate or low, it must remain at that level for at least two consecutive weeks before the safety protocols can change.
Designate a Person(s) to Coordinate Workplace Safety Efforts: A person or persons should be designated to coordinate implementation of, and compliance with, this Guidance.
Takeaway: If you are a federal contractor or subcontractor you must carefully analyze this Guidance to determine if you are covered. If you are, remember that employees who cannot get the vaccine due to disability or religious belief can request an accommodation. However, that does not mean you must provide the accommodation requested if it creates an “undue hardship” for your organization. For example, an employee may request weekly testing as an accommodation. However, it may be that the administrative burden and cost of allowing testing as an accommodation is an undue hardship for your company. Before denying a request for these reasons, be sure to consult legal counsel to make sure you have fully documented the undue hardship to protect you in the event of litigation.
If you need assistance with understanding how this Guidance may affect your business, please do not hesitate to contact Ruder Ware!
The content in the following blog posts is based upon the state of the law at the time of its original publication. As legal developments change quickly, the content in these blog posts may not remain accurate as laws change over time. None of the information contained in these publications is intended as legal advice or opinion relative to specific matters, facts, situations, or issues. You should not act upon the information in these blog posts without discussing your specific situation with legal counsel.
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