On November 1, 2021, the Safer Federal Workforce Task Force issued additional guidance for federal contractors with respect to vaccine mandates and other COVID-19 safety protocols. The new guidance is available on the Safer Federal Workforce website FAQ section for federal contractors. While the information does not substantially alter any previously issued guidance, it does address several of the practical concerns and questions that federal contractors have been raising since Executive Order 14042 was first issued on September 9, 2021. The guidance specifically addresses “covered contractors,” which are contractors or subcontractors who are party to a covered federal contract that requires compliance with guidance published by the Safer Federal Workforce Task Force.

What enforcement mechanisms should federal agencies use for federal contractors who fail to comply with the Task Force’s Guidance for Federal Contractors and Subcontractors?

The guidance clarifies that if a federal contractor is working in good faith to comply with the Task Force’s guidance but encounters challenges, the federal agency’s contracting officer should work with the covered contractor to address the challenges. However, if the covered contractor is not taking steps to comply, the contract may be terminated.

What should a covered contractor do if an employee refuses to be vaccinated?

The guidance states that a covered contractor can follow its usual processes for enforcement of workplace policies, including those in an employee handbook. This would include any progressive discipline or other similar policies employers may use for enforcing workplace policies. The guidance also provides examples of enforcement mechanisms that federal agencies use, including “a limited period of counseling and education,” followed by disciplinary measures if necessary. For federal agencies, “[r]emoval occurs only after continued noncompliance.” If the employee continues to work while disciplinary or other action is being pursued for failure to comply with a vaccine mandate, the employee must be required to comply with all safety protocols for unvaccinated individuals.

If a covered contractor can access an employee’s vaccination documentation, is the employee still required to provide proof of having received a COVID-19 vaccine?

The new guidance makes clear that if a covered contractor has access to an employee’s vaccination documentation, for example through an employee vaccination program or a State’s immunization database, the covered contractor does not need to require additional proof of vaccination from the employee. The contractor should ensure that any information accessed is done in a manner that is consistent with privacy laws.

Can an employee work for a covered contractor while an accommodation request is pending?

Yes, the guidance acknowledges that a contractor may still be reviewing requests for accommodation in relation to a vaccine mandate when an employee begins work on a covered contract or at a covered workplace. While the accommodation request is pending, the contractor must require the employee to follow all workplace safety protocols for individuals who are not fully vaccinated. These protocols are available in the Task Force Guidance for Federal Contractors and Subcontractors.

What workplace safety protocols are required for employees who have an approved accommodation in relation to a vaccine mandate?

Unfortunately, the guidance is still vague with respect to what safety protocols must be followed for employees who are granted an accommodation in relation to a vaccine mandate. The safety protocols may vary depending on the level of transmission in the local area. Federal agencies may issue their own safety protocols for individuals who are not vaccinated. Generally, individuals who are not fully vaccinated should be required to follow masking and physical distancing guidelines. They may also be required to follow certain testing protocols. For specific safety protocols for individuals who are not fully vaccinated, federal contractors should review the Task Force Guidance for Federal Contractors and Subcontractors, as well as any safety protocols required by contractor’s respective federal agency.

Are corporate affiliates of federal contractors subject to the federal contractor’s COVID-19 safety protocols?

Yes, employees of a corporate affiliate who work at a federal contractor workplace must comply with the federal contractor’s COVID-19 safety protocols. The guidance explains that “[a]n employee of a corporate affiliate of a covered contractor is considered a covered contractor employee if the employee performs work at a covered contractor workplace.” Along those same lines, a workplace that is owned, leased, or otherwise controlled by a corporate affiliate of a covered contractor is considered a covered contractor workplace, “[i]f any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract.” For purpose of the guidance, “business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly: (i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.” Examples of control include, but are not limited to, “interlocking management or ownership identity of interests among family members, shared facilities and equipment, or common use of employees.” The guidance tracks the Small Business Administration’s regulations with respect to determining corporate affiliation, which is available in 13 C.F.R. § 121.103.

Is a federal contractor required to comply with the Task Force Guidance for Federal Contractors and Subcontractors when there is a conflicting state law?

Yes, the Safer Federal Workforce Task Force takes the position that the federal law, including the guidance issued by the Task Force, supersedes any conflicting state laws or orders. The guidance also makes clear that a conflicting state or local law or order does not excuse a covered contractor from complying with these guidelines. However, nothing in the federal guidance prevents a covered contractor from complying with state or local laws or orders that provide for more stringent workplace safety protocols. Along those same lines, simply complying with OSHA workplace safety protocols in relation to COVID-19 may not be sufficient for a covered contractor. If the Safer Federal Workforce Task Force’s guidelines are more stringent than OSHA’s requirements, the guidelines must be followed.

Burr & Forman will continue to monitor recent developments regarding the COVID-19 pandemic and vaccine mandates and will keep our clients up to date on all of the applicable legal requirements. For more information about COVID-19 vaccination mandates and how they may impact your operations, please contact Amy Jordan Wilkes at awilkes@burr.com, Mike Rich at mrich@burr.com, Meghan Cox at mcox@burr.com, or the Burr & Forman attorney with whom you usually work.