On September 9, 2021, President Biden announced his Path Out of the Pandemic: COVID-19 Action Plan. As part of the plan, the President signed Executive Order 14042, Ensuring Adequate Safety Protocols for Federal Contractors (the “Order”). Pursuant to this Order, certain federal contracts and subcontracts must include a specific clause stating that the contractor or subcontractor will comply with COVID-19 guidance. That guidance, entitled COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (“Guidance”) was issued on September 24, 2021.
This alert addresses which contractors are covered by the Order, and for those who are covered contractors, which of their employees are also covered. It also provides a summary of the requirements of the Order and Guidance.
A. Federal Contractors Covered By The Order
Contractors are subject to the requirements of the Order if:[1]
- They contract with a federal agency for services, construction, or a leasehold interest in real property; and
- The contract value is more than $250,000.
For contractors who fall under the Order, their contract (along with all related subcontracts that meet the $250,000 threshold) must include the clause requiring compliance with the Guidance.
On September 30, 2021, the Federal Acquisition Regulatory Council issued a Memorandum with the precise language for the clause that federal contractors and subcontractors must utilize.
Although not mandatory, the Guidance encourages all federal agencies to incorporate the clause into contracts that are not covered or directly addressed by the Order because they are under $250,000 or for the manufacturing of products.
B. Timeline For Compliance
For federal contracts awarded before October 15, 2021 where performance is ongoing, the clause must be incorporated when an option is exercised or an extension or renewal is made.
For contracts or contract-like instruments awarded after November 14, 2021, the clause must be included.
Between October 15 and November 14, 2021, 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 the contract was issued on or after October 15th.
C. Employees Covered By The Order
Covered employees include those who are “working on or in connection with a covered contract.”
The definition is not limited to employees who perform manual labor on the project site, who manage the project site, or who are involved with the project. The definition of covered employees is to be interpreted broadly, and it includes employees who are not directly engaged in performing the specific work called for by the covered contract, but who are nonetheless necessary to the performance of the covered contract. Accordingly, employees in human resources, billing, and legal review may be covered if they are in any way working on or in connection with the contract
Employees working at a “covered contractor workplace” are also covered by the Order.
A “covered contractor workplace” is a “location controlled by a covered contractor at which any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract.” An employee’s residence is excluded from this definition.
As a result of this broad definition, employees who do not work on or in connection with a covered federal contract are still covered by the Order if they work at the same location as a covered employee at any point in time during the performance of the federal contract.
The location will be deemed the same—even if the covered employee works on a separate floor or in a separate building—unless the covered contractor can affirmatively determine that none of its other employees will come into contact with the covered employee. In other words, the contractor needs to affirmatively determine that there will be no interactions between covered contractor employees and non-covered contractor employees during the period of performance of the covered contract, including in common areas including, but not limited to, lobbies, stairwells, kitchens, parking garages, and elevators.
D. Requirements Of The Order For Covered Contractors And Covered Contractor Employees
To decrease the spread of COVID-19, which will, in turn, “decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal Government,” the Guidance delineates the workplace safety protocols below that covered contractors and subcontractors must adhere to.
- COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation.
Covered contractor employees must be fully vaccinated for COVID-19 by December 8, 2021, unless the employee is entitled to a reasonable accommodation because of a disability or a sincerely held religious belief.[2]
After December 8th, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.
A covered contractor is required to review a covered employee’s COVID-19 vaccination documentation that proves the employee’s vaccination status. Employees are required to “show or provide” the employer with one of the following documents as proof of COVID-19 vaccination:
- a copy of the record of immunization from a health care provider or pharmacy;
- a copy of the COVID-19 Vaccination Record Card;
- a copy of medical records documenting the vaccination;
- a copy of immunization records from a public health or State immunization information system; or
- a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of the health care professional or clinic site administering the vaccine.
Digital copies of such documentation are sufficient. The Guidance does not require employers to retain copies of such documentation, but to the extent an employer chooses to do so, the employer must treat the documentation as a confidential medical record that must be stored in a confidential medical file (i.e., not in the employee’s personnel records).
- Compliance by all individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces.
Contractors must ensure that all individuals in its covered contractor workplaces, including employees and visitors, adhere to CDC guidance relating to masking and social distancing. To the extent the CDC implements guidance that pertains to specific settings (healthcare, school, public transportation, etc.), then such guidance must be adhered to as well, if applicable.
Currently, the applicable guidance is as follows:
- Fully vaccinated individuals: must wear a mask when indoors in areas of high or substantial community transmission, but do not need to wear a mask if in an area of low or moderate community transmission; and do not need to physically distance from others regardless of level of transmission in the area.
- Unvaccinated individuals: must wear a mask consistently indoors (including in common areas, shared workplace, office cubicles, open floor plan office space) and in certain outdoor settings regardless of the level of community transmission; must wear a mask in crowded outdoor settings or during outdoor activities that involve sustained close contact with other people who are not fully vaccinated, consistent with CDC guidance; should maintain a distance of at least six feet from others at all times, including in offices, conference rooms, and all other communal and workspaces, to the extent practicable.
An employee who works remotely in their own residence does not need to adhere to social distancing requirements, however, the vaccination requirement still applies to the employee if the employee is working on or in connection with a covered contract.
In certain circumstances, there may be exceptions to mask wearing or physical distancing (e.g., employee is alone in an office with floor to ceiling walls and a closed door, for a limited time when eating or drinking).
Covered contractors are also required to check the CDC COVID-19 Data Tracker County View website (https://covid.cdc.gov/covid-data-tracker/#county-view) in areas in which they have covered contract workplaces “at least weekly to determine proper workplace safety protocols.” Safety protocols may change depending on changes to transmission rates in certain areas. However, if an area of a covered contractor workplace goes down to moderate or low from high or substantial, the contractor needs to keep the same safety protocols in place for two weeks before changing the protocols to the less stringent standard applicable to an area of low or moderate transmission.
- Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.
Covered contractors must designate a person, or persons, to coordinate implementing the Guidance, and ensure compliance. The designated person must ensure that covered contractor employees, along with all individuals likely to appear at a covered contractor workplace, receive information on the required safety protocols. Communication to employees, visitors, among others, who may come to a covered contractor workplace may be done via email, websites, memoranda, flyers, or other means.
To that end, it will be important to create employee communications, including policies, to inform and educate employees on the applicable COVID-19 guidance, while also ensuring compliance.
Signage relating the safety protocols at the covered contractor workplace should also be posted to provide information on the COVID-19 safety protocols and requirements with respect to social distancing and masking to employees, visitors, and anyone who comes to the covered contractor workplace.
We will continue to monitor developments and provide information that may be helpful to those who fall under the ambit of the Order and Guidance. Employers with specific questions are encouraged to speak with one of our employment attorneys.
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This alert is for informational purposes only and may be considered advertising. It does not constitute the rendering of legal, tax or professional advice or services. You should seek specific detailed legal advice prior to taking any definitive actions.
[1] The Order does not apply to: (1) grants; (2) contracts or agreements with Indian Tribes; (3) contracts whose value is equal to or less than $250,000; (4) employees who perform work outside of the United States; or (5) subcontracts solely for the provision of products. (See https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/)
[2] Reviewing a reasonable accommodation request is fact-specific inquiry that must be done on a case-by-case basis. We recommend that employers seek the advice of counsel upon receipt of a reasonable accommodation request.