As anticipated, OFCCP has published additional information, including an implementation timeline, for its Affirmative Action Verification Interface (AAPVI) Portal.  OFCCP provided the following timeline in its communication to contractors:

On Feb. 1, 2022, contractors may begin registering for access to the portal. OFCCP will also send an e-mail to each covered federal contractor in its jurisdiction whose email information is available in its system inviting them to register.

On March 31, 2022, contractors will be able to utilize the certification feature in the portal to certify their AAP compliance.  

By June 30, 2022, existing contractors must certify whether they have developed and maintained an affirmative action program for each establishment and/or functional unit, as applicable.

 

Additional information will be forthcoming from the Agency.  But in the meantime, OFCCP is directing contractors to its Contractor Portal Landing Page as well as its Frequently Asked Questions.

We will be reviewing this information and will provide additional updates and insights in the coming days.

A federal judge in the case of Commonwealth of Kentucky v. Biden has decided President Joe Biden likely overstepped his authority with Executive Order 14042 in requiring federal contractors to mandate COVID-19 vaccinations for their employees.  Adding additional complexity and confusion to the already muddied landscape, the decision enjoins the Order for going into effect in Kentucky, Ohio and Tennessee -the three states that challenged the Executive Order in the lawsuit.  Federal contractors and subcontractors subject to EO 14042 and the implementing FAR Clause are relieved, at least temporarily, from implementing the requirements for employees in the three named states.  This injunction throws a curve ball for Tennessee employers in particular.

Those employers with employees in Tennessee should be mindful of the Tennessee law that, among other things, prohibits private employers from requiring employees to show proof of COVID-19 vaccination or taking adverse action against an employee who does not show proof of vaccination if they object for any reason.  Under that law If an employer would lose federal funds, the employer can file a petition for relief from the state controller, but with EO 14042 enjoined this option will not be available.

The case is Commonwealth of Kentucky et al. v. Biden et al., case number 3:21-cv-00055, in the U.S. District Court for the Eastern District of Kentucky.

The DOL today published the Final Rule implementing the $15 per hour minimum wage for federal contractor workers who work on or in connection with covered contracts, which President Biden authorized by in Executive Order 14026.   Building on former President Obama’s Executive Order 13658, President Biden in April 2021 issued the Order and the DOL published a Proposed Rule in July 2021.

The Order applies to “new contracts” on and after January 30, 2022.  However, the term “New Contract” has been expanded and applies to:

  • Extensions or renewals of existing contracts or contract-like instruments; and exercises of options on existing contracts or contract-like instruments on or after January 30, 2022.

Thus, the federal government may exercise an option in an “old” contract not subject to the $15 rate which would make the contract subject to the new $15 wage requirement.

Contracts resulting from solicitations issued before January 30, 2022 and entered into on or between January 30, 2022 and March 30, 2022 are exempted.  “However, if such a contract is subsequently extended or renewed, or an option is subsequently exercised under that contract, …” the $15 wage will apply.

Recall, also, that the $15 minimum wage applies only to certain types of contracts:

  1. Procurement contracts for construction covered by the Davis-Bacon Act(DBA), but not the Davis-Bacon Related Acts;
  2. Service Contract Act (SCA) covered contracts;
  3. Concession contracts;

Concession contract means a contract under which the federal government grants a right to use federal property, including land or facilities, for furnishing services. The term concessions contract includes but is not limited to a contract the principal purpose of which is to furnish food, lodging, automobile fuel, souvenirs, newspaper stands, and/or recreational equipment, regardless of whether the services are of direct benefit to the Government, its personnel, or the general public;

4. Contracts related to federal property and the offering of services the general public, Federal employees, and their dependents.

In contrast to Executive Order 14042 requiring COVID vaccines for federal contractors, procurement contracts for services – distinguished from SCA contracts – are not covered for purposes of the $15 minimum wage.  In addition, the Final Rule specifically carves out the following:

  • Contracts for the manufacturing or furnishing of materials, supplies, articles, or equipment to the Federal Government;
  • Grants;
  • Contracts or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act;
  • Contracts excluded from coverage under the SCA or DBA specifically excluded in the implementing regulations;
  • Other contracts specifically excluded. See Final Rule Section 23.40.

Similarly, not all federal contractor workers or employees are entitled to the $15 wage.  Rather, federal contractors must so compensate “workers.”  That term means:

  • Any person (employee, independent contractor or apprentice in a registered program) engaged in performing work on or in connection with a covered contractor or subcontract; and,
  • Whose wages under such contract are governed by the Fair Labor Standards Act, the Service Contract Act, or the Davis-Bacon Act, other than individuals employed in a bona fide executive, administrative, or professional capacity.

Moreover, a contractor need not pay the $15 wage to any worker whose wages are governed by the FLSA (but not the DBA) who only works “in connection with” a covered contract fewer than 20% of their workweek in any particular week.

As with the COVID vaccination executive order, the scope of workers working “in connection with” a covered contract is broad:

  • A worker performs “on” a contract if the worker directly performs the specific services called for by the contract.
  • A worker performs “in connection with” a contract if the worker’s work activities are necessary to the performance of a contract but are not the specific services called for by the contract.

The $15 wage is mandatory, however, only when a covered worker is performing work on or in connection with a covered contract, not for all work if the employee does not work on or in connection with the contract at all times

“The contractor must pay each worker performing work on or in connection with a covered contract no less than the applicable Executive Order minimum wage for all hours worked on or in connection with the covered contract…”

Keep in mind also that tipped employees are treated separately pursuant to Section 23.280 of the Final Rule.

Some federal contractors may not have any covered contracts/subcontracts or any workers earning less than $15 per hour on covered contracts.  Thus, determining covered contracts and current wages for workers is the place to start.

Updated! The Safer Federal Workforce Task Force has updated the error in the vaccination deadline reported yesterday, correcting January 18, 2021 to January 18, 2022.

Vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. Covered contractor employees must be fully vaccinated no later than January 18, 2022. After that date, 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.

On November 10, the Safer Federal Workforce Task Force again updated the binding Guidance for Federal Contractors and Subcontractors implementing Executive Order 14042, and issued new and updated FAQs for federal contractors.

January 18, 2022 “Full Vaccination” Deadline is “Official” 

The first order of business was to officially extend the full vaccination deadline from December 8, 2021 to January 4, 2022, as stated in the White House Fact Sheet regarding the OSHA Emergency Temporary Standard (ETS).  As we addressed last week, the deadline was extended to correspond with the ETS and CMS deadlines.  Specifically, the fact sheet stated employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022.

Recall, however, that the Executive Order’s definition of “fully vaccinated” is two weeks after a last vaccine shot:

  • Fully vaccinated – People are considered fully vaccinated for COVID-19 two weeks after they have received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine. There is currently no post-vaccination time limit on fully vaccinated status; should such a limit be determined by the Centers for Disease Control and Prevention, that limit will be considered by the Task Force and OMB for possible updating of this Guidance.

Thus, the critical deadline is January 18, two weeks after the deadline to get a final dose.  January 4 will be the last day a covered employee could receive a final dose and be fully vaccinated by January 18.  The newly updated Guidance actually uses the date of January 18, 2021, but this is obviously a typo which we think will likely be corrected imminently by the TaskForce.

Given the Fact Sheet is not itself regulatory action, there was some confusion as to whether the deadline had been “officially” extended, especially given that the ETS was subsequently enjoined by the Fifth Circuit Court of Appeal.  Because the Guidance implements Executive Order 14042, the deadline has now been officially extended.

New and Updated FAQs

 None of the new or updated FAQs is particularly significant but they are helpful.  A new FAQ provides a link to signage for employees regarding the vaccine, masking and distancing requirements:

  • NEW Q: Is there sample signage that a covered contractor can post at entrances to covered contractor workplaces providing information on safety protocols?
  • A: Yes. Covered contractors should post signage at entrances to covered contractor workplaces providing information on safety protocols for fully vaccinated and not fully vaccinated individuals and instruct individuals to follow the appropriate workplace safety protocols while at the covered contractor workplace. Sample signage for areas of high or substantial levels of community transmission can be found here. Sample signage for areas of low or moderate levels of community transmission can be found here.

Another updates CDC guidance regarding when a vaccination should be delayed.

Given the new deadline, this FAQ has also been updated (unfortunately with the same obvious typo):

  • UPDATED Q: Are the workplace safety protocols enumerated in the Task Force Guidance for Federal Contractors and Subcontractors the same irrespective of whether the work is performed at a covered contractor workplace or at a Federal workplace?

 

  • A: Yes. The Task Force Guidance applies to all covered contractor employees and to all contractor or subcontractor workplace locations.  While at a Federal workplace, covered contractor employees must also comply with any additional agency workplace safety requirements for that workplace. Because covered contractor employees working on a covered contract need to be fully vaccinated after January 18, 2021, covered contractor employees who work only at a Federal workplace need to be fully vaccinated by that date as well, unless legally entitled to an accommodation.

We are monitoring the Task Force website on a daily basis for updates to the Guidance and the FAQs, so please check back soon.

 

OFCCP has announced a proposal to rescind the Trump-era final rule “Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption”.  As described in the Proposal:

OFCCP’s proposed rescission would preserve the EO 11246 religious exemption, which would still be available to qualifying contractors. This rescission would ensure that the EO 11246 religious exemption is interpreted and applied consistent with Title VII principles and case law. Rescinding this rule would have the effect of returning Department policy and practices to those that were operative during the presidencies of George W. Bush and Barack Obama.

Dating to 2017, the administration of former President Trump took steps to ensure the religious freedoms of employers in the face of what the administration perceived as curtailments of those freedoms, including by OFCCP.  Those efforts culminated in the final Rule to clarify the contours of the EO 11246 religious exemption.  At the time, OFCCP specifically stated that the Rule was “intended to correct any misperception that religious organizations are disfavored in government contracting by setting forth appropriate protections for their autonomy to hire employees who will further their religious missions, thereby providing clarity that may expand the eligible pool of federal contractors and subcontractors.”

About a month later, OFCCP issued an Opinion Letter providing insights on “six possible religious discrimination scenarios.”

As a reminder, federal contractors are prohibited from discriminating based on religion and national origin and must provide appropriate religious accommodations, absent undue hardship.  41 C.F.R. 60-50.2.  However, these regulations are subject to limits:

  1. The Exemption excludes any contractor or subcontractor that is a religious corporation, association, educational institution, or society regarding the employment of individuals of a particular religion;
  2. The Religious Freedom Restoration Act(RFRA) may require an exemption or accommodation for a contractor under EO 11246; and
  3. The First Amendment ministerial exception bars employment discrimination suits on behalf of employees who work at religious institutions in positions deemed to be “ministerial.”

Based on the Proposal and a DOL Blog post, it is fair to say that OFCCP under Director Jenny Yang believes that the prior administration’s Rule went too far by attempting to codify interpretations of the Exemption that are inconsistent with Title VII case law.  In summary, OFCCP’s Proposal identifies three bases for rescission of the Rule:

  1. Religious Employer Test.  The Proposal and Blog argue that the Rule goes too far in allowing organizations to qualify for the Exemption:

The [Rule] permits a contractor whose purpose and/or character is not primarily religious to qualify for the Executive Order 11246 religious exemption.

That [Rule] adopted new standards at odds with the weight of relevant case law, including Title VII case law.  For example, in determining which entities are eligible for the religious exemption, Title VII case law has overwhelmingly held that the ultimate inquiry focuses on whether the employer’s purpose and character are primarily religious – a determination typically made by weighing multiple factors. The [Rule] departed from that approach. Under the proposal, OFCCP would return to following this authority.

  1. Exemption of Unlawful Employment Actions.  Here, OFCCP’s Proposal argues that the Rule impermissibly allows qualifying religious  federal contractors to discriminate if “motivated ‘solely’ by its sincerely held religious tenets, even when the contractor’s actions violate another nondiscrimination prohibition of Executive Order 11246 (other than race…).”

The [Rule’s] definition of ‘particular religion’ authorizes the contractor to require, as a condition of employment, the applicant’s or employee’s ‘acceptance of or adherence to sincere religious tenets as understood by the employer.’ … The weight of Title VII case law reflects that qualifying religious employers generally may make decisions about whether to employ individuals based on acceptance of and adherence to religious tenets, as long as those decisions do not violate the other nondiscrimination provisions of Title VII, apart from the prohibition on religious discrimination

  1. Categorical Approach to RFRA Analysis.  OFCCP’s Proposal asserts that the Rule stands the RFRA on its head by elevating religious interests over all other protected statuses.  “[The] RFRA provides that when application of a federal government rule or other law would substantially burden a person’s exercise of religion, the government must afford that person an exemption to the rule unless it can demonstrate that applying the burden to that person furthers a compelling governmental interest and is the least restrictive means of doing so.”

The [Rule], however, announced that OFCCP “has less than a compelling interest in enforcing E.O. 11246 when a religious organization takes employment action solely on the basis of sincerely held religious tenets that also implicate a protected classification, other than race.” The preamble repeatedly mentioned marriage and sexual intimacy as likely subjects of such religious beliefs requiring accommodation … suggesting that protection from discrimination on the bases of sex, sexual orientation, and gender identity in particular could be compromised under this analysis.  Executive Order 11246, however, lists all the protected bases on equal terms, making no distinction among them.

We will continue to monitor developments and bring you any important updates.

On November 10, the Safer Federal Workforce Task Force again updated the binding Guidance for Federal Contractors and Subcontractors implementing Executive Order 14042, and issued new and updated FAQs for federal contractors.

January 18, 2022 “Full Vaccination” Deadline is “Official” 

The first order of business was to officially extend the full vaccination deadline from December 8, 2021 to January 4, 2022, as stated in the White House Fact Sheet regarding the OSHA Emergency Temporary Standard (ETS).  As we addressed last week, the deadline was extended to correspond with the ETS and CMS deadlines.  Specifically, the fact sheet stated employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022.

Recall, however, that the Executive Order’s definition of “fully vaccinated” is two weeks after a last vaccine shot:

  • Fully vaccinated – People are considered fully vaccinated for COVID-19 two weeks after they have received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine. There is currently no post-vaccination time limit on fully vaccinated status; should such a limit be determined by the Centers for Disease Control and Prevention, that limit will be considered by the Task Force and OMB for possible updating of this Guidance.

Thus, the critical deadline is January 18, two weeks after the deadline to get a final dose.  January 4 will be the last day a covered employee could receive a final dose and be fully vaccinated by January 18.  The newly updated Guidance actually uses the date of January 18, 2021, but this is obviously a typo which we think will likely be corrected imminently by the TaskForce.

Given the Fact Sheet is not itself regulatory action, there was some confusion as to whether the deadline had been “officially” extended, especially given that the ETS was subsequently enjoined by the Fifth Circuit Court of Appeal.  Because the Guidance implements Executive Order 14042, the deadline has now been officially extended.

New and Updated FAQs

 None of the new or updated FAQs is particularly significant but they are helpful.  A new FAQ provides a link to signage for employees regarding the vaccine, masking and distancing requirements:

  • NEW Q: Is there sample signage that a covered contractor can post at entrances to covered contractor workplaces providing information on safety protocols?
  • A: Yes. Covered contractors should post signage at entrances to covered contractor workplaces providing information on safety protocols for fully vaccinated and not fully vaccinated individuals and instruct individuals to follow the appropriate workplace safety protocols while at the covered contractor workplace. Sample signage for areas of high or substantial levels of community transmission can be found here. Sample signage for areas of low or moderate levels of community transmission can be found here.

Another updates CDC guidance regarding when a vaccination should be delayed.

Given the new deadline, this FAQ has also been updated (unfortunately with the same obvious typo):

  • UPDATED Q: Are the workplace safety protocols enumerated in the Task Force Guidance for Federal Contractors and Subcontractors the same irrespective of whether the work is performed at a covered contractor workplace or at a Federal workplace?

 

  • A: Yes. The Task Force Guidance applies to all covered contractor employees and to all contractor or subcontractor workplace locations.  While at a Federal workplace, covered contractor employees must also comply with any additional agency workplace safety requirements for that workplace. Because covered contractor employees working on a covered contract need to be fully vaccinated after January 18, 2021, covered contractor employees who work only at a Federal workplace need to be fully vaccinated by that date as well, unless legally entitled to an accommodation.

We are monitoring the Task Force website on a daily basis for updates to the Guidance and the FAQs, so please check back soon.

The President today announced via a Fact Sheet the awaited OSHA Emergency Temporary Standard (ETS) that applies to employers with 100 or more employees.  As anticipated the ETS requires either full vaccination for employees or weekly negative tests.  He also announced new vaccine requirements for health care workers issued by the Centers for Medicare & Medicaid Services (CMS).  An unpublished version of the ETS is available here.  It is expected to be published in the federal register November 5, 2021.  An unpublished version of the CMS rule is available here.

Importantly, for federal contractors, this announcement includes an extension of the Executive Order 14042 vaccine requirement to January 4, 2022, to correspond with the ETS and CMS deadlines.   The current deadline is December 8, 2021.

Streamlining Implementation and Setting One Deadline Across Different Vaccination Requirements: The rules released today ensure employers know which requirements apply to which workplaces. Federal contractors may have some workplaces subject to requirements for federal contractors and other workplaces subject to the newly-released COVID-19 Vaccination and Testing ETS. To make it easy for all employers to comply with the requirements, the deadline for the federal contractor vaccination requirement will be aligned with those for the CMS rule and the ETS. Employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022.

 

Significantly, the Fact Sheet also, somewhat cryptically, states that the ETS and CMS rule will not apply to “workplaces subject to the federal contractor requirement or CMS rule…”

And, the newly-released ETS will not be applied to workplaces subject to the federal contractor requirement or CMS rule, so employers will not have to track multiple vaccination requirements for the same employees.

Somewhat stating the obvious, this seems to confirm that if a federal contractor has a workplace subject to the federal contractor vaccine requirement, that requirement prevails and the contractor need not worry about the ETS or the CMS rule  – for that facility.  However, if a federal contractor also has a facility where no employee works on or in connection with a covered contract or subcontract – that is, therefore, not subject to the federal contractor requirements – that facility is subject to the ETS or the CMS rule, as applicable.

We will continue to provide relevant updates for federal contractors as we learn more.

 

The EEOC has announced that the EEO-1 reporting portal will not accept 2019 or 2020 EEO-1 reports after November 15, 2021.  The deadline to file was October 25, 2021.  Despite a year filled with challenges and delays brought on by COVID-19 and the complexities of filling two years worth of reporting at the same time, EEOC has declined to provide any more time for filers to comply beyond this short two-week grace period.  The notice states however that

[i]f you have already requested assistance from the Filer Support Help Desk and have a pending help desk ticket, we are in the process of addressing those requests and will ensure that you are able to file.

As instructed, the Safer Federal Workforce Task Force has modified and updated its guidance on implementation of Executive Order 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors.  Most recently, the Task Force released new FAQs providing additional guidance for contractors working to implement the requirements of the Executive Order.  A number of the FAQs significantly expand the vaccination requirement to employees and workplaces of companies “affiliated” with federal contractors, and others allow more leeway in enforcement by contracting agencies and options for unvaccinated employees to continue working. Others provide guidance for addressing employees who refuse to be vaccinated or are in the process of requesting an accommodation.  Importantly, during an informational webinar hosted today by the Administration, it was emphasized that contractors’ good faith efforts towards compliance will be acknowledged.

Expanded Coverage

The new FAQs addressing expand coverage based on corporate affiliation are located under the “Scope and Applicability” section of the Taskforce online FAQs and read as follows:

  • NEW Q: If a corporate affiliate of a covered contractor does not otherwise qualify as a covered contractor, are the employees of that affiliate considered covered contractor employees subject to COVID-19 workplace safety protocols for Federal contractors established through Task Force Guidance?
  • A: For purposes of Task Force Guidance, business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly: (i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.  Indicia of control include, but are not limited to, interlocking management or ownership, identity of interests among family members, shared facilities and equipment, or common use of employees. An employee of a corporate affiliate of a covered contractor is considered a covered contractor employee if the employee performs work at a covered contractor workplace.

While this FAQ appears to give a nod to OFCCP’s “single entity” test, it appears to be broader and more inclusive and highlights the fact that the analysis for coverage of this executive order differs from that used to establish affirmative action obligations and corresponding OFCCP jurisdiction.

This expanded view is also being applied to covered contractor workplaces:

  • NEW Q: If the workplace where a covered contractor’s employees perform work on or in connection with a covered contract is a location owned, leased, or otherwise controlled by a corporate affiliate of a covered contractor that does not otherwise qualify as a covered contractor under Task Force guidance, is the workplace considered a covered contractor workplace?
  • A: … If 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 at a workplace controlled by a corporate affiliate of that covered contractor, that workplace is considered a covered contractor workplace.

This FAQ covers at least two scenarios.  If a covered contractor shares a workplace/building with an affiliated company, the employees of the affiliate are also subject to the Guidance.  Moreover, if a covered employee of a federal contractor visits a facility of an affiliate – or is even likely to be present – the employees of the affiliate at that facility are also subject to the Guidance.  These FAQs appear contradictory to definitions in the Guidance itself with respect to covered workers and workplaces, which state specifically that the touchstone of employee and workplace location coverage is the entity holding a covered government contract.

Other new FAQs in the Vaccination and Safety Protocols section are more helpful by offering a softer enforcement approach, as the below reflect.

  • NEW Q: Do all requests for accommodation need to be resolved by the covered contractor by the time that covered contractor employees begin work on a covered contract or at a covered workplace?
  • A: No. The covered contractor may still be reviewing requests for accommodation as of the time that covered contractor employees begin work on a covered contract or at a covered workplace. While accommodation requests are pending, the covered contractor must require a covered contractor employee with a pending accommodation request to follow workplace safety protocols for individuals who are not fully vaccinated as specified in the Task Force Guidance for Federal Contractors and Subcontractors.

 

  • NEW Q: What steps should an agency take if a covered contractor does not comply with the requirements in the Task Force’s Guidance for Federal Contractors and Subcontractors?
  • A: Covered contractors are expected to comply with all requirements set forth in their contract. Where covered contractors are working in good faith and encounter challenges with compliance with COVID-19 workplace safety protocols, the agency contracting officer should work with them to address these challenges. If a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken.

 

Regarding unvaccinated employees the new FAQs provide additional guidance around compliance:

  • NEW Q: What steps should a covered contractor take if a covered contractor employee refuses to be vaccinated?
  • A: A covered contractor should determine the appropriate means of enforcement with respect to its employee at a covered contractor workplace who refuses to be vaccinated and has not been provided, or does not have a pending request for, an accommodation. This may include the covered contractor using its usual processes for enforcement of workplace policies, such as those addressed in the contractor’s employee handbook or collective bargaining agreements.  One model for enforcement among employees with respect to non-compliance with a vaccination requirement is that being followed by Federal agencies. Guidance for Federal agencies is to utilize an enforcement policy that encourages compliance, including through a limited period of counseling and education, followed by additional disciplinary measures if necessary. Removal occurs only after continued noncompliance. Guidance for Federal agencies is that employees should not be placed on administrative leave while the agency is pursuing an adverse action for refusal to be vaccinated but will be required to follow safety protocols for employees who are not fully vaccinated when reporting to agency worksites. During the time period of enforcement, the covered contractor must ensure the covered contractor employee at a covered contractor workplace is following all workplace safety protocols for individuals who are not fully vaccinated.  An agency may determine that a covered contractor employee who refuses to be vaccinated in accordance with a contractual requirement pursuant to EO 14042 will be denied entry to a Federal workplace, consistent with the agency’s workplace safety protocols.

 

  • NEW Q: When a covered contractor employee is not vaccinated because a covered contractor has provided the employee with an accommodation, what workplace safety protocols must the employee follow while in a Federal workplace?
  • A: The Federal agency will determine the workplace safety protocols that individuals who are not fully vaccinated must follow while in a Federal workplace. As noted in Task Force guidance, in most circumstances individuals who are not fully vaccinated need to follow applicable masking, physical distancing, and testing protocols. However, there may be circumstances in which an agency determines that the nature of a covered contractor employee’s job responsibilities at a Federal workplace, or the location of their work at a Federal workplace, requires heightened safety protocols. Further, in some cases, an agency may determine that the nature of a covered contractor employee’s responsibilities at a Federal workplace are such that no safety protocol other than vaccination is adequate—in that case, covered contractor employees who are not fully vaccinated would be unable to perform the requisite work at the Federal workplace. Such circumstances do not relieve the contractor from meeting all contractual requirements.  In order for agencies to assess appropriate safety measures for contractor employees in Federal workplaces, contractors subject to a contractual requirement for maintaining COVID-19 workplace safety protocols pursuant to Executive Order 14042 should generally notify their contracting officers when one of their employees who works onsite at a Federal workplace has received an exception to the requirement to be fully vaccinated.

Along these lines, we suggest that covered federal contractors – including those who have received a request to modify an existing contract to include the clause – proactively contact their contracting officers regarding challenges they face in implementing the vaccine requirement.  As reflected in this FAQ, that may allow the contracting officer to provide some leeway in compliance.

We will continue to monitor the Task Force Guidance and FAQs for further developments.

The Federal Acquisition Regulation (FAR) Council has issued a Deviation  Clause that will implement President Biden’s Executive Order 14042:  Ensuring Adequate COVID Safety Protocols for Federal Contractors (FAR Clause).  The FAR Council appended the FAR Clause to its Guidance to federal agencies so that agencies can begin immediate incorporation of the Clause into solicitations and contracts (FAR Guidance), while the FAR Council undertakes the formal rulemaking process, including a notice and comment period, for development of a final FAR clause.

The FAR Guidance, requests contracting agencies to develop deviations allowing use of the new FAR Clause. Significantly, however, individual agencies are left to make their own determinations as to how expansively to include the Clause.  As of this date, three of the largest contracting agencies—the Department of Defense (“DoD”), General Services Administration (“GSA”), and Veterans Affairs (“VA”) have all published deviations directing their contracting officers to incorporate the FAR Clause into solicitations and contracts.

While each of these groups follows the directives of the Executive Order and the FAR Guidance, there are subtle distinctions among the agencies on how far they will expand discretionary coverage.  Contractors should carefully review the directives from each agency with which they contract to get a full sense of the likelihood of coverage.

The FAR Clause requires covered contractors to comply with the Executive Order  and all guidance issued by the Safer Federal Workforce Task Force, including FAQs, “as amended during the performance of the contract,” but otherwise adds little clarifying information beyond the Executive Order and the Safer Federal Workforce Task Force (Task Force) Guidance. The Executive Order and the Task Force Guidance limit the vaccine, masking and distancing mandates to employees working in the United States and its outlying areas.

The FAR Clause defines these terms, consistent with Section 2.101 of the FAR, as:

United States or its outlying areas means—

(1) The fifty States;

(2) The District of Columbia;

(3) The commonwealths of Puerto Rico and the Northern Mariana Islands;

(4) The territories of American Samoa, Guam, and the United States Virgin Islands;

and

(5) The minor outlying islands of Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Atoll.

Section 5(b) of the Order excludes from coverage “employees who perform work outside the United States or its outlying areas…”

Contractors must include the FAR Clause in subcontracts at any tier that exceed the $250,000 simplified acquisition threshold if they are for “services, including construction, performed in whole or in part within the United States or its outlying areas.”

Despite the foregoing limitation to contracts for “services,” the FAR Guidance reiterates that agencies are, nonetheless, “strongly encouraged” to include the FAR Clause in:

  • Contracts that have been or will be awarded prior to November 14 on solicitations issued before October 15; and
  • Contracts that are not covered or directly addressed by the order because the contract or subcontract is under the simplified acquisition threshold or is a contract or subcontract for the manufacturing of products.

As addressed previously, this extension of the possible coverage of the Executive Order and Task Force Guidance means that some contractors may not know for certain that they have a covered contract until the FAR Clause appears in a new contract or is incorporated as a modification to an existing contract.