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Federal Contractors and Subcontractors: Prepare For New COVID-19 Safety Protocols, Including A Mandatory Vaccination Requirement That Extends Well-Beyond Onsite Federal Contract Work And Federal Contract Workers

by Gayle M. Athanacio, Virginia K. Young and Deborah Norris Rodin

On Friday, September 24, 2021, the Safer Federal Workforce Task Force [1] issued its eagerly-awaited guidance for Federal contractors and subcontractors (the “Task Force Guidance” or “Guidance”) as required by President Biden’s September 9 executive order, “Ensuring Adequate COVID Safety Protocols for Federal Contractors” (the “Federal Contractor Executive Order” or the “Order”). As part of President Biden’s six-pronged “Path Out of the Pandemic” action plan, [2] the Task Force Guidance mandates that “covered contractor employees”—which includes employees who may not actually work on the contract or contract site—be “fully vaccinated.”  The Task Force Guidance additionally establishes protocols such as masking and physical distancing, and the requirement for a COVID-19 coordinator in covered contractor workplaces.

As widely expected, and discussed below, the vaccine mandate is broad, and testing in lieu of vaccination is not an option, except as may be needed in the case of a legally required accommodation.  As President Biden said in his speech announcing the new actions to combat COVID-19, and a subsequent statement from the Office of Management and Budget (“OMB”) reiterated, “if you want to do business with the Federal Government, you must vaccinate your workforce.”

Although the Task Force Guidance is intended to provide clarity, as contractors and subcontractors wade through the lengthy guidance and definitions, they will likely ask if and when they are required to comply. The answers to these questions are far from clear. The Guidance states that “covered contractor employees” must be fully vaccinated by December 8, 2021; however, the Guidance expressly applies only to “covered contracts,” which are defined as contracts or contract-like instruments that include the clause required by the Executive Order, i.e., a clause mandating compliance with the Guidance and any updates as approved by OMB.

The Guidance further instructs that new Federal contracts and contract-like instruments, and those up for renewal or option extension, must include this clause incorporating the Guidance’s mandates, and, when the clause has been incorporated, covered contractor employees must be fully vaccinated by the first day of the period of performance if later than December 8, 2021. However, the Guidance also “strongly encourages” agencies to incorporate, “consistent with applicable law,” clauses requiring compliance with the Guidance, “prior to the date upon which the order requires inclusion of the clause” and “into contracts that are not covered  … by [the Order], because the contract is under the Simplified Acquisition threshold…or a contract or subcontract for the manufacturing of products.” Therefore, as discussed below, if/when a Federal government contractor or subcontractor will be required to comply with the Guidance and its vaccination mandate is unclear.

This article describes government contractor obligations under the Order and new Task Force Guidance, and addresses questions around the scope and timing of their implementation. It also briefly discusses the related Emergency Temporary Standard (“ETS”) which President Biden has instructed the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to soon issue. In practice, large Federal contractors and subcontractors will need to observe both the OSHA ETS and the Federal Contractor Executive Order.

What Does The Guidance Require?

“Covered Contractor Employees” Must Be “Fully Vaccinated” Against COVID-19, Subject to Accommodations Required By Law

Covered contractors must ensure that all “covered contractor employees” are “fully vaccinated” for COVID-19, unless the employee is legally entitled to an accommodation. Accommodations may be needed due to disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance. The Task Force Guidance states that, where the agency and the contractor are “joint employers” under Title VII or the ADA, both should review and consider accommodation requests. Prior infection with COVID-19 is not, in and of itself, a basis for a medical exemption.

Covered contractor employees must be fully vaccinated no later than December 8, 2021, or, after that date, by the first day of performance on a newly awarded covered contract, an exercised option, or extended or renewed contract, when the clause has been incorporated into the covered contract. Contractors should keep in mind they are not “covered contractors” and their employees are not “covered contractor employees” until the contract clause is made part of a contract. (See, When Will Contractors Be Subject To the Requirements?) There is a limited exception to the vaccine mandate based upon “urgent, mission-critical need,” which the agency head must approve, that would allow covered contractor employees to become fully vaccinated within 60 days of beginning work on a covered contract or at a covered workplace.

Employees 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.[3] Notably, the Task Force Guidance recognizes that there is currently no post-vaccination time limit on fully vaccinated status, i.e., a need for a booster shot as a condition of becoming or staying “fully vaccinated.” However, the Guidance acknowledges that, based on CDC guidance, this may be updated.

Employers are not required to provide onsite vaccinations but should advise employees where vaccines can easily be obtained. Employers must obtain, and maintain the confidentiality of, specified written documentation as proof of fully vaccinated status; employee self-attestation is not acceptable under any circumstances.[4]

What Employees and Locations are Covered?

The Task Force Guidance applies “to all covered contractor employees and to all contractor or subcontractor workplace locations.” (FAQ 10) A “contractor or subcontractor workplace location” is a “location where covered contract employees work, including a covered contractor workplace or Federal workplace.” (Emphasis added.) The breadth of the definitions of “covered contractor employee” and “covered contractor workplace” cannot be overstated, and expands the requirements of the Guidance well beyond contractor employees reporting to work on the contract at a Federal workplace.

“Covered Contractor Employee”

The Task Force Guidance defines a “covered contractor employee” as “any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace.  This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.” (Emphasis added.)

Working “in connection with a covered contract” includes “performing duties necessary to the performance of the covered contract, but … not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review.” (FAQ 17) Thus, employees who perform work on or “in connection with the covered contract” are covered by the vaccination requirement, regardless of where they work, even if they work exclusively from home. Additionally, employees who do no work on or “in connection with” a covered contract may be “covered” depending on where they work.

“Covered Contractor Workplace”

In addition to applying to work at any Federal workplace, the Guidance defines a “covered contractor workplace” to include any “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.” (Emphasis added.) The only limitation is that a covered contractor workplace does not include a covered contractor employee’s residence.

Thus, a “covered contractor employee” would include one who performs no work on a covered contract but who works at an offsite contractor workplace where work on or in connection with the contract is performed. An employee who works at a contractor worksite where no work on or in connection with a covered contract is performed, would also be a “covered contractor employee,” if an employee who performs such work is “likely to be present” at the worksite – such as when area managers who may work on the covered contract travel to various worksites.

The Task Force Guidance further explains that, at campus or other locations where there are multiple buildings or facilities, and a covered employee performs duties only in a single location, the entire campus and/or all buildings and facilities are nonetheless considered a “covered contractor workplace” unless the contractor can make an affirmative determination that none of its employees in or at one building, site, or facility will come into contact with a covered contractor employee during the period of performance of a covered contract. Specifically, the Task Force Guidance advises that the contractor would need to establish there was no interaction through “use of common areas such as lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.” (FAQ 9) Thus, it appears that in all but the most unique circumstances, the definition of “covered contractor workplace” will effectively cover the entire building, site and campus where any employee who works on or in connection with the contract is, or is likely to be present, at some time during contract performance.[5]

Needless to say, covered contractors may find they have very few, if any, employees who are not subject to the vaccination requirement.

Other Requirements Under the Task Force Guidance and Order

Covered contractors must also ensure that employees and visitors at “covered contractor workplaces” comply with CDC guidance as to masking and social distancing.  All individuals in covered contractor workplaces, regardless of vaccination status, must wear masks indoors in areas of high or substantial community transmission. Covered contractors must check the CDC COVID-19 Data Tracker County View website at least weekly for community transmission information in all areas where they have a covered contractor workplace, to determine proper workplace safety protocols.  Individuals who are not fully vaccinated must wear masks indoors and at certain outdoor events regardless of the level of community transmission, and physically distance to the extent practicable in areas such as conference rooms, offices, and communal work spaces.

The Task Force Guidance also requires covered contractors to designate at least one person to coordinate implementation of the COVID-19 workplace safety rules, including posting signage at “covered contractor workplaces” setting forth the Guidance requirements and workplace safety protocols, and ensuring compliance with the vaccination documentation at covered contractor workplaces.

Are All Federal Government Contracts Subject To the Order and Guidance?

The Federal Contractor Executive Order explicitly applies to new contracts or “contract-like instruments;” new solicitations; and extensions or renewals, and exercise of options, on existing contracts or contract-like instruments, for:

  • “services, construction, or a leasehold interest in real property”;
  • contracts for services covered by the Services Contract Act;
  • contracts for concessions; and
  • contracts “in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.”

Demonstrating an intent to broadly mandate the Federal COVID-19 requirements, the Task Force Guidance notes that the definition of “covered contract” includes “any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing.” Moreover, the Order’s requirements must be flowed down to all lower-tier subcontracts, except for subcontracts solely for the provision of products, which are expressly excluded from the Order.

The Order also contains explicit exclusions for: (i) grants; (ii) contracts or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act; (iii) contracts or subcontracts valued equal to or less than the simplified acquisition threshold; and (iv) employees who perform work outside the United States or its outlying areas. The Task Force Guidance similarly acknowledges that contracts under the simplified acquisition threshold, or contracts or subcontracts for the manufacturing of products, are “not covered or directly addressed by the [O]rder.”

But contractors and subcontractors beware: As noted at the outset of this article, both the Order and Task Force Guidance “strongly encourage” agencies to incorporate a clause requiring compliance even if not otherwise required by the Order if otherwise legally permissible. In other words, contractors may face agency-imposed requirements to comply with the Guidance that are not necessarily required by the Order itself.

When Will Contractors Be Subject To New Requirements?

The Federal Contractor Executive Order was “effective immediately,” and the Task Force Guidance notes how the Order is to be applied:

  • Contracts awarded prior to October 15 where performance is ongoing: the requirements must be incorporated at the point at which an option is exercised or an extension is made.
  • New contracts:
    • the requirements must be incorporated into contracts awarded on or after November 14, 2021; and
    • 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 such contract was issued on or after October 15, 2021.

To implement the Order, the FAR Council is required to amend the FAR to incorporate the clause described above in Federal contracts and solicitations. However, given how long the process of amending the FAR can take, by October 8, 2021, the FAR Council must also take initial steps to implement policy direction that agencies issue deviations from the FAR to allow for use of the new contract clause while the process to amend the FAR is ongoing. Finally, also by October 8, 2021, agencies are directed to take action “to exercise any applicable authority” to ensure that contracts not subject to the FAR, entered into on or after October 15, 2021, also include the new contract clause.

As previously noted, agencies are “strongly encouraged,” to the extent permitted by law, to incorporate a clause requiring compliance with the Guidance prior to the date required by the Order. As a result, contractors should expect to see agencies including requirements for vaccination and other workplace safety protocols in contracts and contract-like instruments, and/or at workplaces where Federal government work is performed, whether strictly covered by the Order or not.

OSHA’s Expected Emergency Temporary Standard

In addition to the Order and Task Force Guidance, many contractors, both Federal and non-Federal, will soon face vaccination requirements under upcoming OSHA regulations. As President Biden announced in his COVID-19 Action Plan, the OSHA will be issuing an ETS which, among other safety protocols, will require all employers with 100 or more employees to ensure their workforce is fully vaccinated, or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. The anticipated OSHA ETS will apply to employers of 100 or more employees whether or not they do business with the Federal government.

The DOL has stated that the OSHA ETS will be issued in the coming weeks. Once published in the Federal Register, the ETS will be effective without any public comment period.  States with their own OSHA-approved occupational safety and health plans must either amend their standards to be identical or “at least as effective as” the new standard, or show that an existing State standard is “at least as effective” as the new Federal standard.

The new OSHA ETS is anticipated to apply to the over 80 million workers who work for private employers with 100 or more employees. We expect the ETS to address a variety of issues, including other COVID-19 protocols, required documentation for testing and vaccination, and steps to take with respect to third parties in the workplace, such as customers and visitors. We also anticipate the ETS to require payment for time spent getting vaccinated and recovering from vaccination. Time spent and the cost of testing will likely also be addressed. Contractors should remember that they must also comply with State wage and hour laws, which frequently address these issues.

Covered contractors who may be hoping to follow OSHA’s expected “vaccine or test” rule, instead of the Task Force Guidance mandating vaccination, should note that the Guidance expressly rejects this idea: “Covered contractors must comply with the requirements set forth in this Guidance regardless of whether they are subject to other workplace safety standards,” including those set forth in the OSHA ETS.  (FAQ 20)

Key Takeaways

The COVID-19 safety protocols and requirements set forth in the Federal Contractor Executive Order and Guidance are far reaching and significantly change Federal contractors’ obligations. Litigation contesting the legality of the Order has already started and more legal attacks on the Order, the Guidance, and the coming OSHA ETS are expected. Ultimately, however, Federal contractors likely face the prospect of Federal agencies incorporating into their contracts new clauses that mandate vaccination and other workplace safety protocols for their employees in addition to the forthcoming OSHA ETS. As such, Federal contractors and subcontractors, and those considering doing Federal government work, would be well-served to promptly assess their ability to comply with the Order and Guidance, whether or not they are strictly covered. Steps to consider include:

  • Undertake to assess and confidentially record whether employees are “fully vaccinated”
  • Assess the need to potentially ramp up hiring efforts, if necessary, to address potential gaps in the workforce as a result of the vaccine mandate
  • Review and potentially update company policies regarding COVID-19 to assess compliance with Order mandates and any applicable State requirements
  • Communicate with subcontractors regarding the Order mandates and assess their ability to comply

Attorneys at RJO are tracking the rapidly-evolving COVID-19 requirements applicable to government contractors, and we will continue to report on updated developments. If you have questions about the requirements for your company, please contact one of the RJO attorneys with whom you regularly work, or the authors of this article.



The materials provided at this site are offered for informational and educational purposes only and are not offered as and do not constitute legal advice or legal opinions. The transmission or receipt of information through this website, or communications with Rogers Joseph O’Donnell via email through this website, does not constitute or create an attorney-client relationship between us and any recipient.


[1] By way of background, the Biden Administration’s initial executive order on protecting the Federal workforce from COVID-19, issued in January 2021, established the Safer Federal Workforce Task Force and charged it with providing “ongoing guidance” on the operation of the Federal government and the safety of Federal employees, among other things.

[2] Another executive order, also signed on September 9, 2021, mandates vaccination for Federal executive branch employees, with no option of testing as an alternative, as had been permitted previously.

[3] Employees who have had COVID-19 and were treated with monoclonal antibodies or convalescent plasma may need to wait 90 days before getting vaccinated under current CDC guidance. Acceptable COVID-19 vaccines are those vaccines currently approved or authorized for emergency use by the U.S. Food and Drug Administration (Pfizer-BioNTech, Moderna, and Johnson & Johnson [J&J]/Janssen) or COVID-19 vaccines that have been listed for emergency use by the World Health Organization (e.g., AstraZeneca/Oxford).  Also included are Novavax vaccine clinical trial participants who received an “active” vaccine. More information is available at Interim Clinical Considerations for Use of COVID-19 Vaccines | CDC.

[4] Copies, including digital photographs, scans, or pdf’s of the following are acceptable: record of immunization from a health care provider or pharmacy, the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020), medical records documenting the vaccination, immunization records from a public health or State immunization information system, or any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine.

[5] Covered contractors are also “strongly encouraged” to pass down the vaccine requirement to non-covered contractors providing services at the workplace, such as onsite security, food services and groundskeeping.

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