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On September 24, the Safer Federal Workforce Task Force (“Task Force”) released its <a href="https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20210922.pdf" target="_blank" rel="noopener">“COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors”</a>&nbsp;(“Guidance”), which defines the specific parameters of the vaccination requirement, as well as other safety protocols that contractors and subcontractors must follow. The Guidance is pursuant to and references the <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/" target="_blank" rel="noopener">“Executive Order on Ensuring Adequate COVID Safety Protocols for Contractors”</a>&nbsp;(“Executive Order”), which President Biden issued on September 9.

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Generally, the Guidance requires covered employees to be fully vaccinated by December 8, 2021, unless the covered contractor is legally required to provide an accommodation for a disability or sincerely held religious belief or practice. Contractors must also follow the CDC’s guidance for mask wearing and physical distancing for covered contractor employees and visitors.

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The workplace safety protocols in the Guidance “will apply to all covered contractor employees, including contractor or subcontractor employees in covered contractor workplaces who are not working on a Federal Government contract or contract-like instrument.”

The Guidance clarifies the types of contracts and subcontracts that are covered by the new safety protocols, which are:

The Guidance’s requirements also apply to subcontracts at all tiers under the above categories of prime contracts, except for subcontracts solely for the provision of products. The prime contractor must flow the clause down to first-tier subcontractors; higher-tier subcontractors must flow the clause down to the next lower-tier subcontractor, to the point at which the subcontract is solely for the provision of products.

While the Executive Order does not expressly apply to government contracts or subcontracts for the manufacture or supply of products, the Guidance nevertheless strongly encourages federal agencies to extend the new workplace safety protocols to these types of contracts. As a result, contractors and subcontractors who manufacture or supply products to the government may very likely face the same requirements as their counterparts in the construction and service industries.

As originally suggested by the Executive Order, the safety protocols set forth in the Guidance will apply to employees of covered contractors who do not work on or in connection with a federal contract, and instead perform only commercial work at a contractor’s workplace. A “covered employee,” for purposes of the Guidance, includes any full-time or part-time employee who works at a location at which an employee working on or in connection with a contract “is likely to be present.” This means that if an employee solely performs commercial work in a facility, building or campus where federal government contract work is also being performed, that employee would likely be subject to the Guidance and the new vaccination requirement and other safety protocols. Additionally, fully remote workers who perform work on federal contracts from home are subject to the vaccination mandate, even if they never physically work at either a covered contractor workplace or federal workplace during the performance of a contract. Those individuals are only exempt from the face mask and social distancing requirements, as these safety protocols apply to a “covered contractor workplace,” which does not include a covered contractor employee’s residence.

The Guidance has a limited exception for situations where commercial and contract workers perform services in distinct areas of the same facility or in different buildings on the same campus. In these situations, the contractor must “affirmatively determine” that there will be “no interactions,” including in common areas like lobbies, elevators and parking garages, between government contract and commercial employees at the facility in order to avoid extending the vaccination requirement to all employees at a facility. The workplace safety protocols in the Guidance will not apply to covered contractor employees who only perform work outside the United States or its outlying areas, as those terms are defined in section 2.101 of the Federal Acquisition Regulation (FAR).

Contractors with federal contracts or subcontracts pre-dating October 15, 2021 will be required to comply with the Guidance when an extension or option is exercised with respect to the contract. After November 14, 2021, most new federal contracts will contain the clause requiring compliance. For contracts issued between October 15, 2021 and November 14, 2021, agencies appear to have some leeway with respect to inclusion of the contract clause, though the Guidance and Executive Order strongly encourage the clause’s inclusion.

It is important to note that the Guidance’s requirements are promulgated pursuant to federal law and supersede any contrary state or local law or ordinance.

Broadly summarized, the Guidance directs the Federal Acquisition Regulatory Council (“FAR Council”) to conduct a rulemaking to amend the FAR to include a clause that requires covered contractors performing under FAR-based contracts to comply with the Guidance for contractor and subcontractor workplaces.

The Guidance states that prior to rulemaking, by October 8, the FAR Council will develop a clause and recommend that agencies exercise their authority to deviate from the FAR. Agencies responsible for contracts and contract-like instruments that are not subject to the FAR, such as concession contracts, will be responsible for developing appropriate guidance by October 8, to incorporate the requirements into their covered contract instruments entered into on or after October 15. The prime contractor will then be responsible for ensuring that the required clause is incorporated into its first-tier subcontracts in accordance with the implementation schedule set forth in section 6 of the Executive Order. The Guidance does not state how a prime contractor must verify or ensure that its subcontractors are adhering to the mandate.

Additionally, whether the above is even able to be done in compliance with the requirements of the Administrative Procedure Act (APA) is not yet clear, as a failure to comply with the APA could make the requirements of the Executive Order and Guidance unenforceable.

Contractors or subcontractors covered by the Guidance face several specific COVID-19 workplace safety requirements. Most significantly, covered contractors must ensure that all employees who work on or in connection with the covered contract, or who work in a facility where contract work is being performed, be fully vaccinated for COVID-19. As mentioned above, this vaccination requirement will also apply to fully remote workers who perform work on federal contracts from home.

Following are some of the key takeaways from the Guidance.

Masking and Physical Distancing Requirements

Designation of COVID-19 Safety Representative

The Guidance requires covered contractors to designate an appropriate representative, which can be one or more persons, to coordinate COVID-19 workplace safety efforts at covered contractor workplaces. The designated person(s) will ensure implementation as well as compliance with the Guidance and the workplace safety protocols at covered contractor workplaces.

The designated person(s) are also responsible for disseminating the COVID-19 workplace safety protocols and making sure they are provided to all covered contractor employees and all other individuals “likely to be present at covered contractor workplaces.” Page 8 of the Guidance details the medium that should be used to accomplish this.

COVID-19 Workplace Safety Protocols Signage

The Guidance also requires covered contractors to post signage instructing individuals to follow the appropriate workplace safety protocols while at the covered contractor workplace. The signage must be posted at entrances to covered contractor workplaces and provide information on safety protocols for fully vaccinated and not fully vaccinated individuals, including the protocols defined in the masking and physical distancing section of the Guidance.

Given the short time frame between October 15, 2021, the date on which the clause will start being included in government contracts, and the December 8, 2021 vaccination deadline, contractors who expect to receive covered contracts in the near future should begin preparing now to ensure that their workforce complies with the vaccination mandate. Similarly, organizations that are unsure whether they are subject to the new requirements should examine their existing or anticipated contracts to determine if they fall within the scope of the Executive Order and Guidance. Given the expansive reach of the new protocols to any tier of subcontract under a covered prime contract, organizations are wise to consult with legal counsel to determine whether they may be covered by the Guidance.

Contractors covered by the Guidance should take immediate steps to ensure implementation of the vaccination, mask and physical distancing requirements for covered employees and work locations, as well as ensure that these requirements are clearly communicated to all individuals impacted. Contractors should also ensure that all Human Resources and operational staff are appropriately trained on the new safety protocols and understand the contractor’s ongoing duty to provide reasonable accommodations for disability and sincerely held religious beliefs, practices and observances.

Our team will continue monitoring publications from the Task Force, Director and OSHA and will provide updates regarding the status of the Guidance and related regulatory developments.

Government Contracts

Tom Mason 202.263.4168 <a href="mailto:Thomas.Mason@ThompsonHine.com">Thomas.Mason@ThompsonHine.com</a>

Francis E. (Chip) Purcell, Jr. 202.263.4118 <a href="mailto:Chip.Purcell@ThompsonHine.com">Chip.Purcell@ThompsonHine.com</a>

Mona Adabi 202.263.4147 <a href="mailto:Mona.Adabi@ThompsonHine.com">Mona.Adabi@ThompsonHine.com</a>

Labor &amp; Employment

Nancy M. Barnes 216.566.5578 <a href="mailto:Nancy.Barnes@ThompsonHine.com">Nancy.Barnes@ThompsonHine.com</a>

M. Scott Young 513.352.6617 202.263.4134 <a href="mailto:Scott.Young@ThompsonHine.com">Scott.Young@ThompsonHine.com</a>

Matthew R. Kissling 216.566.5586 <a href="mailto:Matthew.Kissling@ThompsonHine.com">Matthew.Kissling@ThompsonHine.com</a>

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our <a href="https://www.thompsonhine.com/services/covid-19-task-force" target="_blank" rel="noopener">COVID-19 Task Force</a>&nbsp;page for additional information and resources.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

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New COVID-19 Workplace Safety Guidance for Federal Contractors and Subcontractors

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