Many federal government contractors and subcontractors may soon be required to ensure that their employees are vaccinated against COVID-19. While many of the details are yet to be determined, there is plenty that we already know. Here is a brief first look at some of the most important things to know about the contractor vaccine mandate.
Please note that this overview is believed current as of its publication date, but this is a rapidly evolving mandate. Please check back here at Govology for future updates.
Where does the mandate come from?
The vaccine mandate takes its legal authority from Executive Order 14042, which was signed by the President on September 9. If you read EO 14042, however, you will notice that an important word is missing: the word “vaccine” is nowhere in the EO! Instead, the EO requires contractors to “comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force”.
On September 24, the Task Force issued its initial guidance. This guidance calls for vaccination of many contractor and subcontractor employees. The Task Force guidance could be supplemented or amended and would still have the force of law because it is incorporated by the EO.
When will the mandate be implemented?
The effective mandate is already causing some confusion among some contractors and subcontractors who believe that it is already effective. It isn’t! The mandate will be enforced by adding a new clause to solicitations and contracts, specifying compliance with the Task Force guidelines. That clause will be rolled out as follows:
- New solicitations issued on or after October 15.
- New contracts awarded on or after November 14.
- Existing contracts for which options to extend are issued on or after October 15.
Agencies are encouraged—but not required—to include a clause requiring compliance in contracts awarded between October 15 and November 14, so awardees could see the clause appear as much as a month before it is legally mandated.
Which contractors and subcontractors will be covered?
Most federal prime contractors and subcontractors will be covered. The new clauses will be inserted in prime contracts for service and construction, as well as leases and federal concession contracts. However, the requirements do not apply to:
- Contracts and subcontracts below the simplified acquisition threshold (currently $250,000 for most acquisitions).
- Subcontracts solely for the provision of products.
- Certain contracts or agreements with Indian Tribes.
The Task Force’s Guidance states, in no uncertain terms, that the mandate does apply to small businesses.
Which employees are covered?
Many—but not all—prime contractor and subcontractor employees will be covered by the mandate. The Task Force’s guidance defines a “covered employee” as a full-time or part-time employee:
- Working on or in connection with a covered contract; or
- Working at a covered contractor workplace.
The “or” is important because it means that the mandate applies to almost all contractor employees working “on or in connection with” a contract or subcontract that includes the mandate—even employees who work from home. It also applies to employees who work at a facility controlled by the contractor, even if those employees are not working on covered contracts or subcontracts. However, because an employee’s residence is not a “covered contractor workplace,” the mandate does not apply to an employee who works from home and does not work “on or in connection with” a covered contract.
Finally, the mandate does not apply to contractor employees who “only perform work outside the United States or its outlying areas,” as the term is defined in FAR 2.101.
Are there exceptions?
The Task Force Guidance recognizes that a contractor may be required to provide an accommodation “because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance.” The Task Force does not provide additional guidance as to when exceptions are allowed—and in fairness, contractors in different jurisdictions are subject to different state and local employment laws. It would be wise for any contractor or subcontractor to consult with a knowledgeable employment attorney about this topic.
When must covered employees be vaccinated?
Employees covered by the Task Force’s Guidance and not entitled to an exception must be fully vaccinated by December 8. Employees who are not covered by the Guidance on December 8 but become covered due to the award of a new contract after December 8 generally must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or other extension to a contract. Agencies can approve limited exceptions to the “first day” rule for certain mission-critical employees, but even those employees must be fully vaccinated within 60 days of the first day of performance.
What are the responsibilities of prime contractors?
The Task Force’s Guidance states that “[t]he prime contractor is responsible for ensuring that the required clause is incorporated into its first-tier subcontracts” in accordance with the implementation schedule I previously discussed. In addition, “first-tier subcontractors are expected to flow the clause down to their lower-tier subcontractors.”
The FAR Council (the body that writes and amends the FAR) will develop a formal rulemaking to amend the FAR to include a clause implementing the vaccine mandate. But by October 8, the FAR Council will develop a temporary “deviation” clause that agencies can use pending the arrival of the formal clause. The clause will undoubtedly answer additional lingering questions and provide more guidance to contractors.
We will keep you posted on this evolving and very important matter.
Nothing contained in this article is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This article is intended for educational and information purposes only. Although the author strives to present accurate information, the information provided in this article is not guaranteed to be accurate, complete, or up-to-date. Reading this article does not establish an attorney-client relationship with the author.
Meet the Author:
Steven Koprince is the founder of Koprince McCall Pottroff LLC and a Senior Partner with the firm. Steven’s legal practice is devoted exclusively to helping clients achieve their federal government contracting goals. Steven is the author of The Small-Business Guide to Government Contracts (AMACOM Books, 2012) and his articles have appeared in several leading industry and legal publications, including Contract Management Magazine and The Procurement Lawyer. Steven has spoken to audiences across the country on government contracting topics and is a regular presenter with Govology. A graduate of Duke University and the Marshall-Wythe School of Law at the College of William & Mary, Steven lives in Indian Harbour Beach, Florida, with his wife and two children. Steven can be reached at firstname.lastname@example.org or at 785-200-8919.