October 22, 2021

Biden Administration Issues Federal Contractor Vaccine Mandate

What Happened?

On September 9, 2021, President Biden issued an Executive Order requiring employees of federal contractors and subcontractors to get vaccinated against COVID-19.  As part of the Administration’s effort to get as many individuals as possible vaccinated, the Executive Order is broadly drafted to require nearly every employee of businesses contracting with the federal government to be vaccinated or risk losing their federal contracts.  The Order directs the Safer Federal Workforce Task Force (“Task Force”) to issue guidance (the “Guidance”), which was released on September 24, 2021, to implement the Order.  On September 30, the Federal Acquisition Regulatory Council issued a contract clause requiring contractors and subcontractors at any tier to comply with the guidance published by the Task Force and recommended that federal agency acquisition offices exercise their authority to develop Federal Acquisition Regulation (“FAR”) deviation clauses implementing the Task Force’s guidance.  With the release of the Guidance and contract clause, employers must immediately be prepared to implement and comply with these requirements.

Why it Matters?

The Guidance applies to any contract or contract-like instrument with a federal agency or department (“covered contract”) and covers a prime contractor or subcontractor at any tier who is a party to a covered contract (“covered contractor”).  In turn, a “covered contractor employee” is any employee of a covered contractor working on or in connection with a covered contract.  The “in connection with” language is purposely broad and includes employees who are indirectly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review.

Covered contractor employees must be vaccinated no later than December 8, 2021 or by the first day of performance of a covered contract, option exercise, or renewed contract when a clause requiring compliance with the Guidance has been incorporated into a contract.

There are certain exceptions to the Guidance. The two most significant exceptions are contracts below the Simplified Acquisition Threshold, currently set at $250,000, and contracts or subcontracts for the manufacturing of products or for supplies.  However, the Guidance expressly states that in such contracts the contracting agency is “strongly encouraged” to include the contract clause implementing the Guidance and the discretion to do so rests entirely with the contracting agency.  This unilateral discretion and the clear aim of the Guidance, makes it highly likely that even these generally-exempted contracts will still require compliance with the Guidance.

Acceptable proof of fully vaccinated status is limited to digital or hard copies of an immunization record from a healthcare provider or pharmacy, a COVID-19 Vaccination Record Card, medical records documenting the vaccination, immunization records from a public health or state immunization information system, or other official documentation detailing the type of vaccine administered, date(s) of administration, and the name of the healthcare professional or clinic site that administered the vaccine.  An employee’s attestation of vaccination, proof of prior infection, or an antibody test are not sufficient proof of vaccination.

Although there is no testing alternative in the Guidance, employees may still seek an accommodation based on a disability and/or medical condition or a sincerely held religious belief.  Employers should maintain and engage in their usual interactive process and reasonable accommodation procedures when faced with such a request and should, ideally, involve employment counsel.

Finally, and in addition to the vaccine requirements, the Guidance also requires that covered contractors ensure that all individuals, including covered employees and visitors, comply with published CDC guidance for masking and social distancing at covered contractor workplaces.

What you Should do Now?

Covered contractors should designate their COVID-19 workplace safety monitor and continually check for updated guidance, FAQs and contract clauses released by the Task Force.  Employers should then evaluate their worksites and operations to determine which workplaces and employees are covered by the Guidance and implement policies and procedures to ensure their compliance. All compliance efforts should be documented and done in conjunction with experienced employment counsel.  HLS’s Employment Practice Group has extensive experience in assisting government contractors prepare for and comply with the Guidance and upcoming enforcement.