And now, the other COVID-19 shoe employee vaccination guide released for federal contractors and subcontractors

As McGuireWoods noted in a September 10, 2021 alert and in FAQ for September 20, 2021, the COVID-19 vaccination mandates of President Biden’s “Path Out of the Pandemic” employees have three main elements – one of which only applies to certain federal contractors and subcontractors based on Executive Decree 14042 (OE) issued September 9, 2021.

On September 24, the Federal Workforce Safety Task Force released new guidance on how this EO will operate operationally and the locations and employees covered by it.

These new requirements are distinct from the Working Group protocols published on July 29, 2021 for certain employees of contractors and subcontractors who physically work on-site at a federal facility. The highlights of the new directive are as follows:

Where can employers find a copy of the working group guidance document?

A copy of the 14-page “COVID-19 Occupational Safety: Guidance for Federal Contractors and Subcontractors” working group (guidance) can be found here.

What are the basic requirements?

“Federal contractors and sub-contractors with a covered contract are required to adhere to the following workplace safety protocols:

  1. COVID-19 vaccination of employees of covered contractors, except in limited circumstances where an employee is legally entitled to housing;
  1. Compliance by individuals (including employees and visitors of Covered Subcontractors) with the Masking and Physical Distancing Guidelines in the Workplaces of Covered Subcontractors; and
  1. Designation by Covered Contractors of a person or persons to coordinate COVID-19 workplace safety efforts at the workplaces of Covered Contractors. “

Which entrepreneurs are covered?

Federal contractors and subcontractors are only affected if they have a contract or “contract-like instrument” (1) for services, construction or a leasehold interest in real property; (2) for services covered by the law on service contracts; (3) for concessions; or (4) entered into with the federal government in connection with federal property or lands and in connection with the provision of services to federal employees, their dependents or the general public.

There is no exception for small businesses (eg less than 100 employees) to the OE or the Directive. However, procurement contracts providing only “goods” and equipment to the federal government (and similar subcontracts to federal prime contractors) are not covered. In addition, the contracts not cutlery include:

  • subsidies;
  • the contracts of Indian tribes;
  • contracts with a value equal to or less than the Federal Acquisition Regulation (FAR) simplified acquisition threshold (currently $ 250,000);
  • contracts involving employees performing work outside the United States; and
  • subcontracts only for the supply of products.

Which contractor sites are covered?

A “Covered Contractor workplace” is defined as “a location controlled by a Covered Contractor where 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. of a covered contract ”. Thus, covered workplaces can expand beyond parts of a building or campus where employees work directly “on or in connection with” a federal covered contract. By the working group:

  • The Guide applies to indoor and outdoor workplaces.
  • The Guide applies to all buildings and sites within a workplace campus – and to floors and areas within a given building or workplace – where individuals may “come into contact with a person. employee of a covered subcontractor during the performance of a covered contract “. This includes “interactions through the use of common areas such as lobbies, security control areas, elevators, stairwells, meeting rooms, kitchens, dining rooms and parking lots” .

However, a “covered contractor workplace” does not not include the personal residence of an employee.

Which employees of subcontractors are covered?

“Covered contract employees” are defined as any full-time or part-time employee of a covered contractor:

  1. working “on or in connection with a covered contract”, or
  1. work at a covered contractor workplace.

In addition, the Guide states that work performed “in connection with” a covered contract includes “employees who perform the tasks necessary for the performance of the covered contract, but who are not directly engaged in the performance of the specific work required. by the covered contract, such as human resources, invoicing and legal review.

Thus, the Guide is broader in scope than it first appears. However, the Guide does not include employees of contractors “who only perform work outside the United States or its outlying areas.”

Do the requirements apply to remote employees?

Yes, regarding vaccinations, but No regarding other COVID-19 safety obligations. According to the directives:

  • “A person working on a covered contract from their residence is an employee of a covered contractor and must comply with the vaccination requirement for employees of a covered contractor, even if the employee never works at a place of work of a covered contractor or at a federal workplace during the performance of the contract. “
  • However, as noted above, a “covered contractor workplace” does not include an employee’s personal residence. Thus, “while in the residence, the individual does not need to comply with the workplace requirements of the covered contractors, including those related to masking and physical distancing, even when working. on a covered contract ”.

Do all covered contract employees need to be vaccinated against COVID-19?

Yes, “except in limited circumstances where an employee is legally entitled to an accommodation”. According to the directives:

  • “A Covered Contractor may be required to provide an accommodation to employees of the Covered Contractor who communicate to the Covered Contractor that they are not vaccinated against COVID-19 due to a disability (which would include medical conditions) or because of a sincere religious belief, practice or observance.
  • “Requests for“ medical accommodations ”or“ medical exceptions ”should be treated as requests for accommodations for people with disabilities. “

What do the masking and physical distancing rules require?

Covered contractors must ensure that all persons, including employees and visitors of covered contractors, comply with guidelines issued by the Centers for Disease Control and Prevention (CDC) for masking and physical distancing at a location. Contractor’s work covered, except in the case of an approved disability or religious accommodation. The guidelines summarize the current CDC guidelines as follows:

  • Fully vaccinated employeees: In areas of high or substantial community transmission, fully immunized people should wear a mask indoors, with the limited exceptions described in the Guide. In areas of low or moderate community transmission, fully immunized people do not need to wear a mask. Fully vaccinated people do not need to physically distance themselves, regardless of the level of transmission in the area.
  • Employees not fully vaccinated: People who are not fully immunized should wear a mask indoors and in some outdoor settings (as outlined in the Guide), regardless of the level of community transmission in the area. Whenever possible, people who are not fully vaccinated should maintain a distance of at least 6 feet from others at all times, including in offices, conference rooms, and all other common and work areas.

How can employers determine the level of “community transmission” for a site?

Covered contractors are required to verify CDC COVID-19 Data Tracker County View Website for community transmission information in all areas where they have a “covered contractor workplace” at least once a week to determine appropriate workplace safety protocols.

Do these new obligations take effect immediately?

No, mandatory COVID-19 vaccination and other security requirements will be rolled out in phases through the insertion of contractual clauses in federal master contracts. In accordance with the guidelines, the Federal Procurement Regulatory Council will issue guidelines by October 8, 2021 allowing agencies to add a clause relating to these COVID-19 workplace safety protocols to covered federal procurement solicitations and contracts submitted to FAR, effective October 15. . Further away:

  • For contracts awarded before October 15 and whose execution is in progress: The requirements must be incorporated at the time an option is exercised or an extension is made.
  • For new contacts: Requirements are to be incorporated into contracts awarded as of November 14th.

Once applicable to a federal prime contractor, the contractor “shall forward the clause to first level subcontractors”. The higher level subcontractors must in turn “pass the clause on to the next lower level subcontractor, to the point where the subcontracting requirements relate only to the supply of products”.

All this assumes that the regulatory requirements of the Federal Law on Administrative Procedure can or will be fulfilled by these dates.

When should employees of covered contractors be fully immunized?

For contractors and subcontractors who enter into a “covered contract” before December 8, 2021 (whether as a new contract or following an option, extension or renewal in progress). fiscal year), covered employees must be vaccinated against COVID-19 and justify it no later than December 8, 2021, unless an accommodation exemption is granted. After December 8, all employees of covered contractors must be fully immunized by:

  • the first day of the performance period of a newly awarded covered contract, and
  • the first day of the execution period of an exercised option or of an extended or renewed contract when the clause has been incorporated into the covered contract.

Where can I find out more?

The Advice has 21 informative FAQs. Additionally, if you have any questions about the new mandatory contractor vaccination requirements or their scope of coverage, or if you need help developing or updating policies and documents for implementation, please contact the authors. of this article, your McGuireWoods contact or a member of the firm work and employment, positive action, federal contracts Where COVID-19 response teams.

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