In our last post, we detailed President Biden’s Executive Order 14042 regarding vaccination requirements for government contractors. The order made clear that a new clause requiring vaccinations would be included in new contracts in the near future, but questions remained about which employees would ultimately be subject to the requirements. On September 24, 2021, the Safer Federal Workforce Task Force (Task Force) issued guidance that answered many of those questions.

Which Contracts Are Subject to the New Requirements?

The guidance states that the new clause must be included in all new contracts beginning on November 14, 2021. In addition, beginning on October 15, 2021, the new clause must be included in any existing contract where an option is exercised or an extension is made. The original order included an exception for new contracts awarded between October 15 and November 15 if the solicitation was issued before October 8, 2021, but the status of that exception is unclear. In fact, the guidance specifically encourages agencies to include the new clause in contracts awarded prior to November 14, 2021.

If a Contract is Subject to the New Rules, Which Employees Are Covered?

In short, effectively all of them. The guidance states that where the new clause is included in a contractor’s contract (or subcontract), the vaccination requirements will apply to all “covered contractor employees.” The definition of “covered contract employee” includes both contract and location-based references, and will mean that most (if not all) of a contractor’s employees will be subject to the requirements.

With regard to a particular contract, a “covered contract employee” is “any full-time or part-time employee of a covered contractor working on or in connection with a covered contract…” That language will be read as broadly as possible and will cover all employees working on or in support of a covered contract regardless of where they work, including employees who work remotely. This includes support roles like human resources, billing, and legal review.

The location-based definition of “covered contractor employee” is even broader, encompassing any employee “working at a covered contractor workplace,” which is any workplace where an employee “working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract.” This includes outdoor worksites, subcontractor workplaces, and campus-style workplaces.

When read in tandem, the contract and location-based portions of the definition of “covered contractor employee” extends the vaccine mandate to any employee working on or in connection with a covered contract (including human resources, billing, etc.); and any employee working at a location where another employee is working in connection with a covered contract. In other words, once a contractor or subcontractor obtains a contract that includes the new clause, the vaccine mandate will apply to any employee working on or in connection with the contract in any capacity, as well as any employee working at a location where another employee is doing any contract-related work. For many contractors, that will effectively mean that all employees will be subject to the mandate.

The deadline to be fully vaccinated is December 8, 2021, or the first day of performance of a covered contract, whichever comes later.

The only exceptions to the vaccination mandate are those that are required by law, such as for disabilities or sincerely held religious beliefs. For employees who meet those exceptions, contractors must provide a reasonable accommodation, and it is up to the contractor to determine that accommodation.

How Does a Contractor Demonstrate Compliance?

Prior to the issuance of this guidance, most agencies merely required that employees attest that they were vaccinated. However, the guidance now places a heavier burden on employers, requiring that they inspect each employee’s proof of vaccination. In addition to the vaccination requirement, contractors must ensure that all individuals, including vaccinated employees and visitors, follow CDC guidance for masking and physical distancing. Contractors must check the community transmission levels on the CDC COVID-19 Data Tracker County View website weekly for each covered contractor workplace and follow the CDC’s guidance for the corresponding level (low, medium, substantial, or high).

Are Contractors Entitled to Additional Compensation?

For new contracts, probably not. Contractors should be aware that the requirements will apply to new contracts, and price their proposals accordingly. However, if the new clause is incorporated into an existing contract through a modification, or when an option is exercised or an extension is made, contractors should be entitled to compensation. Under those circumstances, the new clause would not have been part of the original solicitation, so the inclusion of the new clause should represent a compensable change.

We will continue to update this guidance for contractors as the Task Force issues additional specifics. Our Government Contracting Group is available to assist you with questions on these new requirements and any other government contracting matters.