COVID-19 vaccination requirements have garnered a significant amount of media coverage over the last several months and government contractors are now being brought into the mix. On September 9, 2021, President Biden issued Executive Order 14042 - Ensuring Adequate COVID Safety Protocols for Federal Contractors. The Executive Order required “covered” contractors to implement upcoming safety guidance aimed at protecting employees against COVID-19. Subsequently, on September 24, 2021, the Safer Federal Workforce Task Force (the Task Force) issued the anticipated “Guidance for Federal Contractors and Subcontractors,” which included vaccination and other safety requirements, as well as answers to frequently asked questions (FAQs). As a next step, the Federal Acquisition Regulation (FAR) Council is expected to issue additional guidance by October 8, 2021 for an enabling contract clause that will implement the requirements under the Executive Order and the Task Force’s recent guidance. The following provides a brief summary of the key requirements as well as issues that government contractors may encounter as a result.

Who Is covered by the Executive Order / Task Force Guidance:

• The vaccination requirement applies to government contractors under “contracts and contract-like agreements,” as defined under a recent rule proposed by the Department of Labor. See “Increasing the Minimum Wage for Federal Contractors,” 86 Fed. Reg. 38,816, 38,887 (July 22, 2021). Contract-like agreements include any legally enforceable agreement and, therefore, would likely extend coverage to parties holding other transaction authority agreements (OTAs) as well as traditional procurement contracts. The vaccination requirement will also be required to be “flowed-down” to covered subcontractors. Importantly, federal grants are not covered contracts under the rule.
• Only contracts (and contract-like agreements) for services (including construction) or a leasehold interest in real property valued above the simplified acquisition threshold (currently $250,000) are covered. Contracts and subcontracts solely for goods are not subject to the Executive Order’s vaccination requirement.
• Under the Executive Order, only newly awarded contracts and extensions or renewals of existing contracts (or contract-like instruments), including the exercise of an option on an existing contract (or contract-like instrument), will trigger the vaccination requirement.
• The Task Force, however, encouraged federal agencies to consider including the vaccination requirement in additional contracts, including contracts for goods and contracts valued below the simplified acquisition threshold. Accordingly, in practice, the breadth of the requirement is likely to be much greater than what was prescribed in the Executive Order and, in any event, will be further interpreted under the forthcoming contract clause.
• Under the current guidance, it is unclear whether contracting officers will impose the vaccination and masking requirements on current contracts that are not extended or on supply contracts.

What does the Executive Order / Task Force Guidance require:

• Contractors and subcontractors will be required to ensure all employees (unless an exception applies) be “fully vaccinated” (i.e. all doses administered plus two weeks for the vaccine to become fully effective) at any “covered contractor workplace” by December 8, 2021, or the first day of contract performance, whichever is later.
• This includes all employees working on a contract or in connection with a contract and any other employees working at the same facility as these employees. Remote employees working on a contract or in connection with a contract must also be vaccinated.
• Contractors may be required to consider potential accommodations for employees who cannot be vaccinated for medical or religious reasons. The guidance, however, does not state what sort of accommodations may be appropriate or required, but instead leaves that analysis to the determination of the contractor, presumably in consultation with the contractor’s legal counsel.
• The Task Force’s guidance also requires vaccinated employees to wear masks in public areas if the office is located in an area designated as an area with high or substantial community transmission. As of this advisory’s publication date, most metropolitan areas have high or substantial community transmission. Unvaccinated employees are required to wear masks and socially distance regardless of the level of community transmission in the area where the office is located.
• Contractors are required to designate one or more individuals that are responsible for coordinating the contractors compliance with the COVID-19 vaccination requirements, including informing employees and visitors of these requirements through email, office signage, website publications, etc.

Things for contractors to consider:

• Contractors will be expected to include the costs of complying with these requirements in their prices for any future contract awards. If, however, the government incorporates the requirements into an existing contract or into the exercise of an option that is already priced, the contractor may be entitled to additional compensation. Contractors should carefully review any modifications to ensure they do not unintentionally waive any right to this additional compensation.
• Contractors will have to make their own determinations regarding whether or not an employee meets the requirements for an exemption. An overly conservative approach could lead to employee complaints, dissatisfaction, and litigation. An overly broad approach, on the other hand, may lead the government to assert the contractor is not complying with the vaccine mandate.
• Contractors may be operating in states that have imposed “mask bans” or have prohibited mandating vaccinations. The federal government’s position is that its requirement pre-empts any contrary state or local prohibitions. Nevertheless, contractors may face challenges from disaffected employees in these states.
• The Task Force’s recent guidance broadly defines what it means to be working “in connection with” a contract to include “back office” or “indirect” functions, including human resources, billing, and legal functions. That breadth is likely to greatly expand the vaccination requirement for contractors.
• Once the requirements are included in a covered contract, the contractor must comply with any future changes to the guidance issued by the Task Force. What will change and when is, of course, difficult to assess at this particular time. We anticipate that the government will not view any such revisions as a compensable change to the contract.

To learn more about vaccine mandates, or for guidance on your organization’s policies, please reach out to one of the contacts listed in this alert.