Compliance Matters TM
The New Vaccination Mandate for Federal Contractors, Subcontractors, and Related Businesses Is Effective December 8th
(COVID-19 Update)
President Biden signed an Executive Order (the “Order”) on September 9th requiring all new federal contracts to mandate COVID-19 vaccination for federal contractor employees. Specifically, the Order compels executive departments and agencies to insert a new clause into covered contracts requiring federal contractors to comply with the Safer Workforce Task Force Guidance (the “Guidance”) for the duration of the contract. The anticipated Guidance was released on September 24th. Highlights from the guidance are discussed below.

Covered Employers. The requirements apply to federal prime contractors and subcontractors at any tier who are parties to a “covered contract” or “contract-like instrument” with a clause requiring compliance with the Guidance. Prime contractors must flow the clause down to first-tier subcontractors; higher-tier subcontractors must flow the clause down to the next lower-tier subcontractor, until the point at which the subcontract requirement is solely for the provision of products.

Covered Contracts and Contract-like Instruments. The requirements do not apply to current federal contracts. It only applies to “covered contracts and contract-like instruments” that contain the clause compelling compliance with the Guidance. The following timetables apply:
  • Contracts awarded prior to October 15, 2021 where performance is ongoing. The clause must be incorporated when an option to extend is exercised or an extension is made.
  • Contracts between October 15, 2021 and November 14, 2021. Agencies must include the clause in the solicitation and are encouraged to include the clause in contracts awarded during this time, but are not required to do so.
  • Contracts awarded on or after November 14, 2021. Contract awarding agencies must include the required clause mandating vaccination compliance.

The terms “covered contracts and contract-like instruments” are defined broadly in the Guidance and given the same meaning as that set forth in the Department of Labor’s proposed July 22, 2021 rule for increasing the minimum wage for federal contractors. The following types of contracts are covered by the new vaccination requirements:
  • Construction contracts
  • Procurement actions
  • Lease agreements
  • Provider agreements
  • Service agreements
  • Licenses
  • Permits

Contracts subject to the Service Contract Act and concession contracts exempted from the Service Contract Act are also covered. Moreover, “contract and contract-like instruments” include verbal contracts, awards and notices of awards, job orders or task orders issued under basic ordering agreements, letter contracts, orders such as purchase orders, exercised contract options, and bilateral contract modifications. 

Exempt Contracts. According to the Guidance, the following contracts are exempt from the vaccination requirements:
  • Contracts and subcontracts solely for products;
  • Contracts or subcontracts below the simplified acquisition threshold (currently $250,000);
  • Contracts or agreements with Indian Tribes;
  • If a Federal agency has an urgent, mission-critical need for a contractor to begin work before full vaccination of staff can be obtained, the agency head may permit the contractor to begin work on a covered contract, provided all covered employees are fully vaccinated within 60 days.

While not required, agencies are strongly encouraged to incorporate a clause requiring compliance with the Guidance into contracts that are not subject to the requirements.

General Requirements. The requirements of the Guidance are separated into three components:
  • Required COVID-19 vaccination of covered contractor employees and employees at covered workplace locations;
  • Compliance with masking and physical distancing protocols in covered contractor workplaces; and
  • Designation of a COVID-19 Safety Officer.

Vaccination Mandate. All covered contractor employees must be fully vaccinated by December 8, 2021 unless exempt due to a religious or medical reason. After December 8th, covered contractor employees must be fully vaccinated by the first day of the period of performance on the newly awarded contract, exercised option, extension, or renewal. Unlike the proposed vaccination mandate for large private employers being developed by the Occupational Safety and Health Administration (“OSHA”), the rules governing federal contractors do not contain any kind of COVID-19 testing alternative to the vaccination requirement.

A person is deemed “fully vaccinated” two weeks after receiving the second dose in a two-dose vaccination series or two weeks after the first dose in a single dose series. Acceptable COVID-19 vaccines include: (1) those approved or authorized for emergency use by the U.S. Food and Drug Administration (i.e., Pfizer-BioNTech, Moderna, and Johnson & Johnson); (2) those listed for emergency use by the World Health Organization (e.g., AstraZeneca/Oxford); and (3) clinical trial participants who are documented to have received the full series of an active COVID-19 vaccine candidate for which efficacy has been independently confirmed.

Covered Employees. The Guidance has a very broad definition of who is a covered employee that is subject to the mandate. It states that all part time and full time employees working “on or in connection with” a government contract or “ working at a workplace controlled by a contractor” must be fully vaccinated. Notably, the term covered employees is defined broadly to include those working on the contract remotely and any employees working indirectly on a government contract, such as those in support positions like human resources, billing, legal, and information technology supporting the government contract workers. Employees who perform work outside of the United States are exempt.

Further, the vaccine mandate extends to all employees at “workplace locations” where covered employees (i.e., those working on or in connection with a government contract) are “likely to be present.” The Guidance explains that even if a covered employee only works on one floor or in a separate area of the building or facility where the contract is to be performed, all employees in the building or facility must become fully vaccinated unless the contractor can demonstrate that there will be no interactions between the covered employee and the other employees during the period of performance of a federal contract such as in the lobbies, elevators, stairwells, meeting rooms, kitchens, parking garages, etc. of the location where the contract is to be performed. Moreover, where the covered employees work on a campus consisting of several buildings controlled by the contractor, all employees on the entire campus must become fully vaccinated unless the contractor can demonstrate that there will be no interactions with the covered employee.

Verification of Vaccination. Contractors must verify the full vaccination status of their employees subject to the mandate. Self-attestation is insufficient. Employees must show or provide their employer with any one of the following: (1) a copy of a vaccine record from a healthcare provider or pharmacy; (2) a copy of the COVID-19 Vaccination Record Card; (3) a copy of medical records documenting vaccination; (4) a copy of immunization records from a public health or State immunization information system; or (5) a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of the health care professional or clinic site administering the vaccine. A digital copy of such documentation is permitted.

Masking & Physical Distancing. All individuals at covered workplaces (i.e., a workplace where an employee is likely to work on or in connection with a federal contract) must comply with CDC guidelines for masking and physical distancing.  In locales with substantial or high community transmission, all visitors and employees must wear masks indoors, regardless of vaccination status; in areas of low or moderate community transmission, fully vaccinated persons are not required to wear a mask . 

Contractors must require individuals in covered contractor workplaces who are required to wear a mask to: (1) wear appropriate masks consistently and correctly (over mouth and nose); (2) wear appropriate masks in any common area or shared workplaces; and (3) for unvaccinated persons, wear a mask in crowded outdoor settings or during outdoor activities that involve sustained close contact with other people who are not fully vaccinated, consistent with CDC guidance. Persons who are not fully vaccinated must also wear a mask indoors, regardless of community transmission levels, and maintain physical distancing to the extent practicable.

Additionally, on no less than a weekly basis, covered contractors are now required to check the CDC Data Tracker website to determine the applicable CDC guidelines for masking and physical distancing. When the level of community transmission is reduced from high or substantial to moderate or low, the contractor must wait two weeks before implementing the lowered health and safety protocols.  

Mask exceptions are permitted in accordance with CDC guidelines, including the following: (1) to reasonably accommodate persons who cannot wear a mask due to a disability or sincerely held religious belief; (2) when alone in an enclosed office with the door closed; (3) when eating or drinking and keeping appropriate physical distance; (4) when engaged in activities in which a mask may get wet; (5) during high intensity activities where employees are unable to wear a mask because of difficulty breathing; and (6) during activities for which wearing a mask would create a risk to workplace health, safety, or job duty as determined by a workplace risk assessment. Employees working remotely do not need to comply with masking and distancing requirements.

Masks are deemed appropriate according to CDC recommendations as set forth in their Types of Masks and Respirators guidance. The following masks are insufficient: (1) masks with exhalation valves, vents, or other openings; (2) face shields without a mask; and (3) masks with a single-layer fabric or thin fabric that does not block light. 

COVID-19 Safety Coordinator. Contractors must designate a person to coordinate implementation of and compliance with the Guidance. Such person(s) is charged with communicating the required COVID-19 workplace safety protocols to employees and visitors, and ensuring that vaccination status is properly verified.

Interaction with Local COVID Laws. Employers must comply with the more protective workplace safety protocols. Thus, while the federal requirements supersede any contrary State or local law or ordinance, contractors must also comply with any applicable State or local laws that are more restrictive than the federal requirements. Moreover, the Guidance specifically states that these federal requirements apply even in states and localities that have banned vaccination mandates.

We will continue to monitor major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at

Richard S. Rosenberg
Katherine A. Hren
Charles H.W. Foster
Ballard Rosenberg Golper & Savitt, LLP 
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