On Sept. 9, President Biden announced his Path Out of the Pandemic: COVID-19 Action Plan and signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. As required by the EO, the Safer Federal Workforce Task Force recently issued guidance on COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. According to the guidance, covered employees must be fully vaccinated by Dec. 8, unless the covered contractor is legally required to provide an accommodation for medical or religious reasons.

On Sept. 24, ABC National issued a press release on the guidance, Federal Contractor Vaccine Mandate Guidance Raises Concerns, Says ABC.

ABC staff and counsel are currently reviewing the extremely broad guidance as well as evaluating any legal implications. Further updates will be provided in forthcoming editions of Newsline and during a Sept. 30 webinar.

Here is the summary of the guidance:

• The guidance requires vaccination of covered federal contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation. Covered employees include:

  • Employees working on or in connection with a covered federal contract, including employees working on a covered federal contract remotely.
  • All employees working at a covered contractor workplace (even if they are not working on or in connection with any federal contract).

  For further information on which employees are covered, refer to ABC general counsel Littler Mendelson’s analysis.  

• Although covered contractors may choose to provide vaccinations at their facilities or workplaces, given the widespread availability of vaccinations, covered contractors are not required to do so.
• Covered employees must be vaccinated by Dec. 8. Covered contractors are required to view or retain a copy of the vaccination card or other approved form of proof of vaccination. Self-attestation of vaccination by the covered contractor employee is not an acceptable substitute for documentation of proof of vaccine.
• Covered employees must be vaccinated by Dec. 8. Covered contractors are required to view or retain a copy of the vaccination card or other approved form of proof of vaccination. Self-attestation of vaccination by the covered contractor employee is not an acceptable substitute for documentation of proof of vaccine.
• There is a religious and disability (which would include medical conditions) accommodation, but no testing scheme for them.
• Requirements flow down from general contractor to subcontractors.
• It is unclear if enforcement or penalties apply for noncompliance.
• Covered contractors must also follow the CDC’s guidance for mask wearing and physical distancing for covered contractor employees and visitors.
• There is no special accommodation for outdoor work or the construction industry.
• The guidance is unclear on acceptable recordkeeping requirements.
• The guidance says requirements are promulgated pursuant to federal law and supersede any contrary state or local law or ordinance.
• Covered contractors shall designate a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.
• For contracts awarded prior to Oct. 15 where performance is ongoing, the requirements must be incorporated at the point at which an option is exercised or an extension is made.
• For new contracts, the requirements must be incorporated into contracts awarded on or after Nov. 14. Between Oct. 15 and Nov. 14, 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 Oct. 15.

The guidance also includes several FAQs. Littler’s analysis is also available.

ABC plans to participate in the rulemaking process and submit comments on the guidance. Prior to the release of the guidance, ABC sent a letter to Office of Management and Budget on behalf of its federal contractor members with practical feedback on the EO, which includes 25 questions and concerns raised by the federal contracting community since the EO’s release on Sept. 9.

To learn more about the guidance and the forthcoming OSHA ETS rule that applies to all employers of 100 or more employees, register for the Sept. 30 webinar on President Biden’s COVID-19 Vaccination Action Plan—What Employers Need to Know.

The information contained in this article is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.