Breaking Down the COVID-19 Safety Guidance for Government Contractors and Subcontractors: What We Know, What We Don’t, and What’s Next

Justin A. Chiarodo and Albert B. Krachman

Answering some questions and raising others, the Safer Federal Workforce Task Force issued its highly anticipated COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors on Friday, September 24. The Guidance follows the president’s September 9, 2021, Executive Order (“EO”), which we summarized in FAQ: Government Contractor COVID Safeguards Executive Order.

In short: a broad vaccine mandate for employees of government contractors is coming. But the exact details on application, exemptions, and compliance remain unclear. New rules due by October 8, 2021, should better address those questions. Adding to this uncertainty, the Guidance encourages individual agencies to issue their own (potentially broader) guidance. That said, we can infer a lot from Friday’s guidance.

Here’s what we know: Covered contractor employees must be fully vaccinated against COVID-19 by December 8, 2021, absent undefined religious and medical exemptions. This means final doses must be administered by November 25, 2021. And covered employers will need to comply with masking, social distancing, and oversight protocols at covered workplaces.

Importantly, the vaccine mandate will extend to both fully remote workers on covered contracts and employees who may come in contact with covered contractor employees at a covered workplace. And vaccination status must be established by records (not attestation).

Here’s what we don’t: Most importantly, we don’t know exactly what contracts and subcontracts will be covered. Section 5(a) of the Executive Order says it applies to several types of service contracts and contract-like instruments. Section 5(b) exempts contracts below the simplified acquisition threshold, contracts performed outside the United States, and subcontracts for products. But what about prime contracts for products? The EO is silent, and the Guidance suggests prime contracts for products may not be covered. But the Guidance also encourages agencies to issue their own rules covering all product prime and subcontracts, as well as agreements below the simplified acquisition threshold.

What also remains to be seen is how this will be enforced. Recordkeeping is an important part of the Guidance, but how and when the government enforces compliance (audits? certifications? penalties?) is unclear right now.

So, what should contractors be doing now? Industry remains heavily engaged in rulemaking, and the prospect for challenges to the mandate remains. While best practices and benchmarking will vary depending on your industry and contract mix, we continue to recommend compliance with the best practices from our prior post on this subject (FAQ: Government Contractor COVID Safeguards Executive Order), and that contractors openly and frequently communicate with their workforces about the government’s guidance and corporate directives.

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