What the new initiatives will require

The Fact Sheet does not mandate vaccination of all federal government and federal contractor employees. Instead, the Fact Sheet states that “every federal government employee and onsite contractor will be asked to attest to their vaccination status. Anyone who does not attest to being fully vaccinated will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a weekly or twice weekly screening testing requirement, and be subject to restrictions on official travel.”  

A companion guidance document from the Safer Federal Workforce Task Force, an interagency group created by the Biden Administration to provide safety guidance to federal executive departments and agencies during the COVID-19 pandemic, offers some additional detail. Among other recommendations, the Task Force’s model safety principles provide that:

• Federal agencies “need to ask about the vaccination status of federal employees and onsite contractors,” and federal employees and onsite contractors “must attest to the truthfulness of the response they provide.” 

• Consistent with recent guidance from the Centers for Disease Control and Prevention (CDC), those who are fully vaccinated generally do not need to wear face masks in the workplace except in areas of substantial or high transmission (as defined by the CDC), although they may choose to do so, and they need not socially distance in the workplace. The CDC’s guidance for mask wearing and distancing in specific settings, such as health care, transportation, correctional and detention facilities, and schools, should be followed as applicable.

• In deciding the relevant area of transmission, federal agencies may consider not only where the workplace is located, but the transmission rates in nearby jurisdictions from which workers commute.

• Those who are not fully vaccinated or who decline to provide vaccination status should be subject to masking and distancing requirements regardless of area transmission levels, as well as travel restrictions and weekly or twice-weekly COVID-19 testing programs that each agency will establish.

• Where a state or local jurisdiction has imposed more protective COVID-19 safety requirements, those requirements should be followed in federal buildings and on federal land in that jurisdiction.

• All federal employees and onsite contractors should be subject to regular “virtual or in-person health checks” that ask about symptoms, close contact with individuals infected with COVID-19, and COVID-19 testing and diagnosis status.

The Fact Sheet also states that President Biden is “directing his team to take steps to apply similar standards to all federal contractors,” presumably including those who do not work “onsite.”  What those requirements would look like, and under what authority they would be adopted and enforced, remains unclear.

The Administration also “strongly encourage[s]” the private sector to follow its safety model. Notably, some private employers have already adopted more stringent protocols, such as requiring proof (rather than attestation) of vaccination status, and mandating vaccination for all employees other than those entitled to medical or religious exemption under applicable laws.

Next steps for federal contractors

Federal contractors will need to address several key compliance questions likely to emerge from the new safety measures. Among them are the following:

• Who qualifies as an “onsite contractor”? Some contractors work primarily at federal facilities; others have periodic access or may be on federal premises for meeting and events. Are all such individuals onsite contractors? Note that some onsite individuals operate under nonprocurement instruments, such as grants and cooperative agreements, and query whether agencies will distinguish among such groups of individuals.  

• Are contractors responsible for an individual employee’s attestation to vaccination status, and what consequences will a contractor or employee face for a false attestation? Does this amount to a contract-level certification? Contractors may need to ask for proof of vaccination status from their employees, especially where signed attestations are submitted to federal agencies. Contractors should remember that the Equal Employment Opportunity Commission (EEOC) has stated that information regarding an individual’s vaccination status should be treated as confidential medical information, and should maintain this information confidentially and separate from personnel files.

• The new safety protocols presumably cover all federal premises. Do the safety precautions extend to contractor-operated premises that receive or house federal workers? Such as federally funded research and development centers (FFRDCs)?

• Are federal contracts going to be modified, and would a new Federal Acquisition Regulation (FAR) clause be issued to reflect these new requirements?

• Should contractors take proactive action now to adopt some or all of these safety measures for employees working at federal sites?

There is nothing new about the government driving social safety programs through federal contract provisions. The Drug Free Workplace Clause at FAR 52.223-6 is one example. But the new COVID-19 safety measures thus far come with no government-wide clause to reference, and some agencies are bound to be more aggressive than others. And although the Biden Administration stopped short of mandating vaccines for federal employees and contractors, pressure is building on contractors to “get with the program” and independently require vaccination of their employees.  

As the pandemic evolves, so too will agency approaches to contractor compliance obligations. Amid the many practical implementation challenges ahead will be the need to square potentially varied federal agency-by-agency award requirements with arrayed legal obligations under non-discrimination laws, EEOC guidance, and state and local requirements. Contractors should take steps now to acquaint their employees with these obligations and monitor for additional requirements that may emerge in the days and weeks ahead. Contractors should update their own safety protocols to conform to the latest applicable federal, state, and local rules and guidance and require employees to acknowledge and agree to abide by both the contractor’s own protocols and those in effect at federal facilities at which they work.

Authored by Bill Ferreira, George Ingham, Amy Kett, Mike Mason, Joy Sturm, Allison Pugsley, Stephanie Gold, Mike Scheimer, and Stacy Hadeka.