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Guidelines for Federal Contractor Compliance with the Safer Federal Workforce Task Force

September 30, 2021

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

The new Guidance from the Safer Federal Workplace Task Force (“Task Force”) issued on September 24, 2021, in response to the President’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, outlines the following requirements for federal contractors and subcontractors:

  • Covered contracts include any contract or contract-like instrument incorporating the clause described in section 2(a) of EO 14042 and it applies only after contracting agencies insert the clause obligating compliance into new contracts, solicitations, or renewals after October 15, 2021.
  • The Guidance reiterates that contract and contract-like instrument has the same meaning included in the Department of Labor’s proposed rule, “Increasing the Minimum Wage for Federal Contractors,” and notes that if the definition changes when DOL issues its final rule, the Guidance will adopt the final rule’s definition.
  •  Although it should not apply to manufacturers, the Guidance also “strongly encourages” agencies to apply the Guidance to contracts “for the manufacturing of products,” which seems to be at odds with the Order’s exclusion of subcontracts solely for the provision of products.
  • Employees covered include any part-time or full-time employee of a covered contractor working on or in connection with a covered contract who is likely to be present during the period of performance for a covered contract.
  • And it broadly interprets “in connection with” a federal contract to include part- and full-time employees of federal prime contractors and subcontractors at any tier of the supply chain who are working either directly on or “in connection with” a contract, which includes indirect support “such as human resources, billing, and legal review.”
  • A covered contractor workplace does not include a covered contractor employee’s residence.
  • However, with respect to remote workers the guidance in FAQ (#11) provides that although the residence is not covered under the guidance, the employee must be vaccinated, regardless of whether they ever work at or visit a covered location.   However, remote workers while at their residences need not comply with masking and distancing requirements. In other words, everyone, regardless of where they work, must be vaccinated.
  • The guidance applies to all buildings in a campus, even if the other buildings or locations are not connected to any performance of a federal contract.
  • FAQ 9 states that the requirements apply to all the buildings, employees and visitors at each building, “…unless a covered contractor can affirmatively determine that none of its employees in or at one building, site, or facility will come into contact with a covered contractor employee during the period of performance of a covered contract… including interactions through use of common areas such as lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.”
  • The guidance states that covered employees must be “fully vaccinated,” unless legally entitled to an accommodation due to a disability or religious belief, practice, or observance. 
  • Covered contractors are not required to determine the vaccination status of visitors or others; the only requirement is that they post signage at entrances on safety protocols, including masking and social distancing.
  • Covered contractors are required to ensure that all individuals, including covered contractor employees and visitors, wear masks and social distance in areas of high or substantial community transmission, as determined by CDC, except in limited circumstances of working alone in an office with a door or when eating or drinking.
  • Covered contractors are to designate a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

The deadline for contractor employees to be fully vaccinated is December 8, 2021, but that may need some flexibility, especially if a contract is newly entered on that date or the day before.

Next, the Federal Acquisition Regulatory Council, must amend the Federal Acquisition Regulation (FAR) by October 8, 2021, to provide for inclusion of a clause, described in section 2(a) of EO 14042, requiring federal contractors and subcontractors to comply with Task Force Guidance. 

The real issue is whether this guidance and requirements are lawful.  President Biden can set requirements for federal employees and people who are on federal properties.  But the guidance takes it a step further as it also states that it overrides any contrary state or local law or ordinance.  The guidance is neither a rule nor a legally passed law.  It is guidance only.  It’s jurisdiction over nonfederal employees and workplaces is questionable.  As there is no implementing rule or law, it appears to violate the Administrative Procedure Act (APA), and lawsuits against it will likely succeed.  Unions will likely sue to say that this requirement must be negotiated. 

As one commentator states, President Biden has “[t]he mistaken illusion {that he can} merely waiv[e] a ‘magic wand’ over federal government contractors, subcontractors, and grantees to mandate vaccinations.” In the meantime, the OSHA emergency rules will be out soon and should be lawful. They will cover all employers with 100 or more employees.

Source: Seyfarth Shaw 9/24/21, Jackson Lewis 9/24/21, Fortney Scott 9/24/21, DirectEmployers 9/13/21

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