Advocacy News – October 5, 2021
The Safer Federal Workforce Task Force (Task Force) released a 14-page guidance and FAQ document for federal contracts and subcontractors on September 24. The guidance specifies the Executive Order applies to covered contractors and subcontractors, regardless of whether they are a small business. It specifies covered employees “must be fully vaccinated no later than December 8, 2021” unless the covered contractor is legally required to provide accommodation for a disability or sincerely held religious belief or practice. Contractors must also follow the CDC’s guidance for mask-wearing and social distancing for covered contractor employees and visitors.
For employees working remotely, the FAQ document specifies an “individual working on a covered contract from their residence is a covered contractor employee and must comply with the vaccination requirement for covered contractor employees, even if the employee never works at either a covered contractor workplace or Federal workplace during the performance of the contract. A covered contractor employee’s residence is not a covered contractor workplace, so while in the residence the individual need not comply with requirements for covered contractor workplaces, including those related to masking and physical distancing, even while working on a covered contract.” The guidance also makes it clear that the mandate applies regardless of whether the contractor’s work is performed indoors or outdoors.
In terms of requiring onsite vaccine offerings, the FAQ document makes it clear that covered contractors are not required to do so and are only required to “ensure their employees are aware of convenient opportunities to be vaccinated.” In terms of antibody tests as an alternative to vaccination, the FAQ makes it clear that a contractor cannot accept a recent antibody test from a covered contractor employee to prove vaccination status.
The Executive Order provides a phased-in approach. For contracts awarded prior to October 15, 2021, the vaccination clause must be incorporated at the point at which an option is exercised or an extension is made. For contracts awarded on or after November 14, 2021, the clause must be included. For contracts awarded between October 15, 2021 and November 14, 2021, the clause must be included in the solicitation and agencies 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, 2021.
The scope of the Executive Order may offer a glimpse into how the Occupational Health and Safety Administration’s (OSHA) might choose to structure its anticipated emergency temporary standard (ETS) vaccine and testing mandate on private-sector employers with at least 100 employees. This being said, the details of the ETS remain sketchy at best.
Given the complexity of the Executive Order and the guidance document, employers believing they need to comply with the Executive Order should seek the advice of legal counsel.
Please contact Wendy Block with any questions at firstname.lastname@example.org.