Detailing what the president’s executive order means for firms that do business with the government

As the pandemic persists, businesses continue to deal with challenges, including determining masking and testing protocols for employees and customers, whether to mandate the vaccine for employees and/or for entry to business premises, and how to accommodate qualifying employees.

The president’s executive order directed departments and agencies to add a contractual provision to certain government contracts that would require contractors and subcontractors to comply with all approved guidance published by the Safer Federal Workforce Task Force (SFWTF) on safeguards in workplaces with individuals working on or in connection with a federal contract.

On Sept. 24, the SFWTF published its Covid-19 workplace guidance for federal contractors and subcontractors.

The guidance requires:

• Covid-19 vaccination of covered contractor employees, subject to legally required accommodations.

• Employees and visitors of a covered contractor to comply with masking and physical distancing protocols.

• Covered contractors to designate someone to coordinate Covid-19 workplace safety implementation and compliance at covered contractor workplaces.

Who is a contractor or sub?

Under the guidance, a covered contractor is defined as “a prime contractor or subcontractor at any tier who is party to a covered contract,” which itself is defined broadly and encompasses most, if not all, new federal contracts, subcontracts and solicitations. Renewals of, extensions of and exercises of options on existing contracts are also covered. Businesses should also be mindful of the “at any tier” language, as it encompasses qualifying subcontracts, sub-subcontracts and so on that support upstream federal contracts.

Are there any exceptions?

The order lists five situations to which it does not apply: grants; contracts, contract-like instruments or agreements with Indian tribes; contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold ($250,000 with limited exceptions where that amount is greater); employees who perform work outside the U.S. or outlying areas; and subcontracts solely for the provision of products. Even if a contract is excepted, the guidance encourages agencies to incorporate the clause in those excepted contracts.

Does it matter when the contract was formed?

SFWTF has provided three time periods for which the clause must be incorporated:

• The clause must be incorporated if an option is exercised on or an extension is made to a contract awarded before Oct. 15, 2021, where performance is ongoing.

• The clause must be included in all contracts for which the solicitation was issued on or after Oct. 15, 2021.

• The clause must be incorporated into contracts awarded on or after Nov. 14, 2021.

Takeaways and requirements

• Qualifying businesses must ensure that all covered employees are vaccinated by Dec. 8, 2021, or the first day of performance on a new contract or renewed contract, whichever is later.

• Qualifying businesses must ensure that individuals, including guests, comply with published CDC guidance around masking, social distancing and other pandemic control measures.

• Business size is not an enumerated exception, meaning that even small businesses may find themselves needing to comply.

• The vaccine mandate applies to covered employees who work remotely, in addition to those working at a qualifying location. This may foreshadow how OSHA will approach a like issue associated with the vaccine mandate for businesses with 100 or more employees.

• Indoor and outdoor workplaces are treated the same.

• There is no weekly testing option for individuals who wish not be vaccinated, nor are antibody tests a replacement for vaccinations.

What now?

If your business has federal contracts and/or supporting subcontracts, you should:

• Review all federal contracts and subcontracts to which you are a party.

• Determine whether those contracts or subcontracts are a covered contract under the order. If they are, you are a covered contractor.

• Be aware that covered prime contractors and higher-tier subcontractors must flow the clause down to the next lower-tier subcontractor.

If you’re a covered contractor, you should:

• Survey your workforce as to vaccination status, if you have not done so already.

• Develop a plan for implementation and compliance with the order and guidance, including appropriate communications with your employees and collaboration with those above and/or below you to establish accountability for compliance. (Note that there are specific documents needed to confirm an employee’s vaccination status.)

• Be sure your Covid-19 screening and workplace safety policies are up to date with CDC guidance, OSHA standards and state law requirements.

• Establish a process to review and evaluate accommodation requests (medical and religious) as outlined in EEOC vaccine mandate guidance if you currently have or plan to adopt a vaccine mandate.

Nicole Forbes, an associate at the law firm of Sheehan Phinney, is a family law and probate litigator.