By Justin Niceswanger
On September 9, 2021, President Biden signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. The order creates requirements for federal agencies to add a new Federal Acquisition Regulation (FAR) clause in many federal solicitations and contracts (and other contract-like instruments) which, in turn, requires many federal contractors and subcontractors to comply with guidance issued by the Safer Federal Workforce Task Force. On September 24, the Task Force posted a document on their website titled COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. Their document identifies three main components for their safety strategy:
- COVID-19 vaccination of employees.
- Masking and physical distancing.
- Designation of one or more people to coordinate COVID-19 workplace safety efforts.
The Task Force’s guidance provides helpful details on which people and places are subject to, or covered by, these new requirements:
- What is a covered contract?
- Who are covered contractor employees?
- What are covered contractor workplaces?
Are you not sure of the answers? Don’t worry, the CIRAS PTAC has you…covered!
The first question is pretty straightforward: A covered contract is any contract or subcontract which contains or will contain the new clause. And any contractor or subcontractor who has the clause in their contract is a covered contractor. So far, so good!
Now let’s look at covered contractor employees. They can be either of the following:
- Any full-time or part-time employee of a covered contractor working on or in connection with a covered contract.
- Any full-time or part-time employee working at a covered contractor workplace (regardless of whether these employees are directly or indirectly involved with a covered contract).
And, since the second item gets into the subject of covered contractor workplaces, let’s go ahead and look at this definition:
- A 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. A covered contractor workplace does not include a covered contractor employee’s residence.
Based on these definitions, you’ll notice how a lot of employees of a business involved in a covered contract could be impacted by the new requirements. Not only do the rules apply to employees directly performing on the Scope of Work of a contract, but they also apply to those “in connection with” the contract. A few examples the Task Force provides for indirect duties necessary to the performance of a covered contract include human resources, billing, and legal review. And, if other employees of yours not at all involved in the contract happen to be working in the same workplace as your covered contractor employees, they are also subject to the vaccination requirements.
Of course, contractor work being performed at a federal workplace will also likely be subject to the vaccination requirements. For some federal workplaces, there may be additional COVID-related requirements or safety protocols than what’s outlined in the Task Force guidance.
In response to the Executive Order, federal agencies have already begun adding a new FAR clause to apply the new vaccination requirements in new and existing solicitations and contracts. It can take a long time for the federal government to finalize changes to the FAR, including adding or editing a particular FAR clause. In the meantime, Deviation Clauses are now available for use by both federal civilian and military agencies. Civilian agencies will be using FAR clause 52.223-99, while military agencies will be using a DFARS (Dept. of Defense supplemental regulation to the FAR) clause 252.223-7999. Both clauses use the title of “Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors”. If you see one of these in your contract, you have a covered contract, and, if you respond to a solicitation which includes one of these clauses, you will be expected to comply with the regulations if you receive award!
Are there Exceptions?
Section 5, paragraph (b) of the Executive Order identifies some exceptions to the vaccination requirements. “This order shall not apply to”:
- Contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act.
- Contracts and subcontracts whose value is equal to or less than the Simplified Acquisition Threshold, as defined in FAR 2.101 ($250,000, in most cases).
- Employees who perform work outside the United States or its outlying areas (U.S. commonwealths, territories, and minor outlying islands), as those terms are defined in section 2.101 of the FAR.
- Subcontracts solely for the provision of products.
However, page five of the Task Force’s guidance contains the following paragraph:
“Consistent with applicable law, agencies are strongly encouraged to incorporate a clause requiring compliance with this Guidance into contracts that are not covered or directly addressed by the order because the contract is under the Simplified Acquisition Threshold as defined in section 2.101 of the FAR or is a contract or subcontract for the manufacturing of products. Agencies are also strongly encouraged to incorporate a clause requiring compliance with this Guidance into existing contracts and contract-like instruments prior to the date upon which the order requires inclusion of the clause.”
Based on the Task Force guidance, if you have an existing contract which currently isn’t a covered contract (doesn’t include the new clause), there may be situations where a federal agency will still request a bilateral modification to add the clause, even if the Executive Order says it shall not apply. For those with long-term contracts which include option years or renewals available: The Task Force guidance tells federal agencies to implement the clause (if required, or desired) at the time an option year or renewal period is exercised. But, again, federal agencies may, and are encouraged to, take action sooner, rather than wait for the time of extension.
As is true with other uncertainties related to government contracts, it’s generally a good practice for businesses to quickly seek clarification for their questions. For those with existing federal contracts or subcontracts, I recommend that you communicate either with (if a prime) your Contracting Officer or (if a sub) the prime contractor. Are they planning to add the clause to your contract? When will they be issuing the modification? How much time will you have to become fully compliant (maybe the date is something you can negotiate)?
The other exception-related topic to the Executive Order deals with accommodations for covered contractor employees. There may be instances where an employee can’t get vaccinated due to a disability / medical condition; or due to a sincerely held religious belief, practice, or observance. For more guidance about accommodations, your business may want to reach out to an employment law professional.
How Do I Comply?
Covered contractor employees on existing covered contracts are required to be fully vaccinated by no later than December 8, 2021 January 4, 2022 (the date was recently extended – see this link for details). The Task Force uses the Centers for Disease Control & Prevention’s (CDC’s) definition of “fully vaccinated”, which is either two weeks after receiving the last dose of a two-dose series vaccine (such as Pfizer or Moderna), or two weeks after receiving a single-dose vaccine (Janssen / Johnson & Johnson). If you’re a covered contractor employee who’s not yet fully vaccinated, you may need to use some strategy as to which vaccine you try to receive in order to get fully vaccinated in time. For those needing to comply by December 8 January 4: You’d need to receive either your one-time or final dose by no later than November 24 December 21!
The Task Force guidance also requires for covered contractors to review its covered contractor employees’ documentation to prove vaccination status. Employees must show or provide the employer with one of the following documents:
- Copy of a COVID-19 vaccination record card (CDC Form MLS-319813_r).
- Copy of medical records documenting the vaccination.
- Copy of immunization records from a public health or state immunization information system.
- Copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of the health care professional or clinic administering the vaccine.
These documents can be provided to the business in a digital format. Again, for more guidance on this subject, you may want to seek the advice of an employment law professional.
For businesses with covered contracts in which the period of performance begins after December 8 January 4, you would need to be fully compliant by the start of the period of performance. Businesses with existing contracts with option or renewal periods available, who will have the new FAR or DFARS clause added to their contracts at the time of extension, would need to be fully compliant by the first day of the extended period. If you have or will have a covered contract which utilizes subcontractors, you also may need to flow-down the clause to your subcontractors, when applicable.
For existing contract-holders, you may find your business incurring costs in order to comply with the new requirements which didn’t exist when the contract was first issued. You may be able to seek an equitable adjustment based on these costs. In order to request an equitable adjustment, it’s important to keep good documentation about the expenses you incur related to the vaccination efforts.
This article doesn’t cover every detail of either the Executive Order or the Task Force’s guidance. If you have a covered contract, or your existing federal contract will become covered later, or you’re seeking a federal opportunity which will be a covered contract, we recommend closely reading guidance found on the Safer Federal Workforce Task Force website, and keeping an eye out for future guidance updates or changes!
For more information, contact Justin Niceswanger at firstname.lastname@example.org or 515-509-9565.