Vaccination mandates for federal contractors and subcontractors | Porter Hedges LLP

On September 24, 2021, the Federal Workforce Safety Task Force (the “Task Force”) issued its guidelines (the “Guidelines”), pursuant to Executive Order 14042 (the “Executive Order ), Requiring employees in workplaces with persons working on or under a federal government contract or contract-like instrument to be fully vaccinated by December 8, 2021. This electronic alert summarizes key aspects of the decree and guidelines, including the companies and employees subject to the mandate, the protocols required and the timeline for compliance.

Does the Guide apply to my business?

1. Is your business a party to a “covered contract”?

The first step in determining whether the Guide applies to your business is to identify whether your business is a party to the type of federal government contract or contract-like instrument subject to the Decree.

The executive decree applies to federal government contracts or to instruments equivalent to contracts for:

• Purchase of services, construction or a leasehold interest in real estate;
• Services covered by the Service Contract Act, 41 USC 6701 et seq.;
• Concessions, including any concession contract excluded by Ministry of Labor regulations at 29 CFR 4.122 (b); and
• Federal property or lands and related to the provision of services to federal employees, their dependents or the general public.

The executive decree does not not apply to the following:

• Subsidies ;
• Contracts, Contract-like Instruments or Agreements with Indian Tribes under the Self-Determination and Aid for Education Act (Public Law 93-638), as amended;
• Contracts or subcontracts with a value equal to or less than the simplified acquisition threshold, as defined in section 2.101 of the Federal Acquisition Regulation (currently $ 250,000); and
• Sub-contracts only for the supply of products.

If your company is a party to any of the above applicable contracts or similar instruments, the clause described in section 2 (a) of the decree must be included in the contract or similar instrument. Clause 2 (a) requires the contractor or sub-contractor to comply with all COVID-19 workplace protections issued by the task force. This clause should be included in all (1) new contracts or similar applicable instruments, (2) new solicitations for a contract or similar instrument, (3) existing contracts or similar instruments when an extension or renewal is carried out. , and (4) existing contracts or contract-like instruments when an option is exercised. See the section on Compliance Schedule below for the schedule requirement for inclusion of the clause in section 2 (a).

Any contract or contract-like instrument which includes the clause of Article 2 (a) is a “covered contract” under the leadership.

A prime contractor or subcontractor who is a party to a covered contract is a “covered contractor»And subject to the Guide.

2. Does the size of my business matter?

If your company is a party to a covered contract, it is a covered contractor and subject to the Guide, regardless of its size. The guide also applies to small businesses and does not have an employee threshold like OSHA’s next temporary emergency standard.

Does the Guide apply to my employees?

The guide applies to “subcontractor employees covered», Which is defined as any full-time or part-time employee of a covered contractor working on or in connection with a covered contract WHERE work at a covered contractor workplace. This definition expressly includes employees of covered contractors who are not themselves working on or in connection with a covered contract.

1. Are your employees working on or under a covered contract?

The Working Group adopts a broad definition of employees working “under a covered contract”. The definition includes not only employees who perform tasks necessary for the performance of the covered contract, but also those who are not directly engaged in the performance of the specific work required by the covered contract. These employees may include those in human resources, billing, or legal departments. If your employee performs work directly or indirectly associated with a covered contract, then it is subject to the Guide.

2. Do your employees work at a covered subcontractor workplace?

Even if your employees are not working on or in connection with a covered contract, they are still subject to the Guidelines if they are working at a covered subcontractor workplace. A “covered contractor’s workplace”Is a location controlled by a covered contractor to which all employee of a covered contractor working on or in connection with a covered contract is likely to be present during the performance of a covered contract.

Essentially, if your business has only one employee working on or in connection with a covered contract, then with rare exceptions, all employees in the same building, site, facility, and campus will also be subject to the Guide.

3. Does it matter that my employee works remotely?

Even if your employee works exclusively remotely from home, the employee is still an employee of a covered subcontractor subject to the Guidelines if the employee is working on or in connection with a covered contract.

However, the Guide does not apply to employees of covered subcontractors who exclusively perform work outside of the United States.

Does the guide apply even if my business is subject to the OSHA Temporary Emergency Standard?

The guide applies to covered contractors even if they are subject to other workplace safety standards, including the upcoming OSHA Temporary Emergency Standard. Thus, covered contractors must adhere to the more stringent requirements of the Guide, which require employees of covered contractors to be fully immunized, while the Temporary Emergency Standard allows an option for weekly COVID-19 testing. .

If the Guide applies to my business, what security protocols are required?

1. Vaccine requirements.

All employees of covered contractors must be fully immunized with the COVID-19 vaccine by December 8, 2021, with the limited exception of employees who are legally entitled to religious or disabled accommodation.

Covered contractors must require employees of covered contractors to show or provide any of the following documents in hard or digital form:

• A copy of the vaccination record from a health care provider or pharmacy;
• A copy of the COVID-19 vaccination card;
• A copy of the medical records documenting the vaccination;
• A copy of immunization records from a public health or state immunization system; Where
• A copy of any other official document attesting to the vaccination with information on the name of the vaccine, the date (s) of administration and the name of the healthcare professional or clinic site administering the vaccine

2. Requirement of masking and social distancing.

Covered Contractors must ensure that all persons, including employees and visitors, at a Covered Contractor’s workplace comply with CDC masking and physical distancing requirements.

3. Designated COVID-19 Compliance Staff.

Covered contractors must designate a person or persons to coordinate COVID-19 workplace safety efforts at the workplaces of covered contractors.

If the decree applies to my company, what is the compliance deadline?

1. Timetable of the vaccination mandate.

All employees of covered contractors must be fully immunized by December 8, 2021. It is important to note that, as directed, “fully vaccinatedMeans two weeks after the employee receives the second dose of a two-dose series of vaccines, or two weeks after the employee receives the single-dose vaccine.

For covered contracts awarded after December 8, 2021, employees of covered subcontractors must be fully immunized by the first day of the contract performance period. For covered contracts extended, renewed or when an option is exercised after December 8, 2021, employees of covered subcontractors must be fully immunized by the first day of the performance period.

2. Timeline for inclusion of clause 2 (a).

For existing covered contracts awarded before October 15, 2021, the clause in Article 2 (a) of the decree must be incorporated into the covered contract when an option is exercised or the contract is renewed or extended.

For newly awarded covered contracts from November 14, 2021, the clause of article 2 (a) of the decree must be incorporated into the newly awarded contract.

For contracts awarded between October 15, 2021 and November 14, 2021, the clause in article 2 (a) of the decree must be included in the solicitation, but the clause is not required in contracts awarded during this period, unless the solicitation for such a contract was issued as of October 15, 2021.

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On September 19, 2021, Porter Hedges released its first e-alert in a series of upcoming articles on federal requirements for COVID-19 vaccines and workplace testing – US Department of Labor Issues Vaccine Mandate – What’s Next for Employers. Federal requirements stem from President Joe Biden’s September 9, 2021 Path Out of the Pandemic: COVID-19 Action Plan (the “Action Plan”) and the publication of Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors. “

This previous email alert focused on one of the six prongs of the action plan: OSHA’s next temporary emergency standard that will require all private sector companies with 100 or more employees to require their employees to be fully immunized. or undergo weekly testing for COVID-19.

Notably, the mandates of federal contractors and sub-contractors have extensive and more stringent coverage than the requirements for private sector companies of non-federal contractors / sub-contractors. Thus, companies should assess whether they are subject to the federal contractor and subcontractor requirements of Executive Decree 14042 (as detailed above), against the temporary emergency standard outlined in our September 19 email alert. and the accompanying webinar.

We will continue to keep you informed as more information becomes available on this and any other issues related to the broader implications of the federal vaccine mandate.

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