Federal Contractor Employees Must Be ‘Fully Vaccinated’ by Jan. 18, 2022

Guidance requires vaccinations to be completed by Jan. 4

Allen Smith, J.D. By Allen Smith, J.D. November 15, 2021
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​In guidance for federal contractors updated on Nov. 10, the Safer Federal Workforce Task Force clarified that covered contractor employees must be fully vaccinated no later than Jan. 18, 2022. This requirement is not affected by the block of the emergency temporary standard.

The guidance noted that people are considered fully vaccinated against COVID-19 two weeks after they have received the second dose in a two-dose series or two weeks after they have received a single-dose vaccine. In other words, federal contractor employees must have received the second doses of the Pfizer or Moderna vaccinations or the one dose of the Johnson & Johnson vaccine by Jan. 4, 2022.

Some states have sued, challenging the vaccination requirement for federal contractors.

In the meantime, covered federal contractors are left working to satisfy the vaccination requirements—testing in lieu of vaccinations isn't an option for them.

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Who Are Covered Federal Contractors?

The workplace protocols for federal contractors, including the vaccine requirement, apply to all covered contractor employees in workplaces where individuals work on, or in connection with, a government contract or subcontract, said Carrie Hoffman, an attorney with Foley & Lardner in Dallas.

She noted that the executive order for the vaccine mandate for federal contractors applies to new contracts, new solicitations for contracts, extensions or renewals of contracts, and the exercise of an option on an existing contract if the agreement is:

  • A procurement contract or contract-like instrument for services, construction or a leasehold interest in real property.
  • A contract or contract-like instrument for services covered by the Service Contract Act.
  • A contract or contract-like instrument for concessions.
  • A contract or contract-like instrument entered into with the federal government in connection with federal property or lands and related to offering services for federal employees, their departments or the general public.

"An individual working on a covered contract from their residence is a covered contractor employee and must comply with the vaccination requirement for covered contractor employees, even if the employee never works at either a covered contractor workplace or federal workplace during the performance of the contract. A covered contractor employee's residence is not a covered contractor workplace, so while in the residence the individual need not comply with requirements for covered contractor workplaces, including those related to masking and physical distancing, even while working on a covered contract," the task force's frequently asked questions note.

Covered contractor employees include full- and part-time employees, noted Emily Harbison, an attorney with Reed Smith in Houston.

Federal subcontractors are subject to the mandate in the same manner that federal contractors are subject to the mandate, said Sheila Willis, an attorney with Fisher Phillips in Columbia, S.C. "That is to say, federal contracts that may be less than the financial threshold of $250,000, are subject to transportation tariffs, take place on Indian lands, are grants, [and] contracts to provide power or utility services are excluded from the mandate."

Leigh Nason, an attorney with Ogletree Deakins in Columbia, S.C., said that subcontractors and contractors with contracts for the manufacturing of products and those with service contracts with nonexecutive agencies and departments are not subject to the vaccine directive.

The executive order requiring vaccines for federal contractors does not apply to employees who perform work outside the United States or its outlying areas, as defined in the Federal Acquisition Regulation, Hoffman noted.

[See SHRM members-only Q&A: "What Do the Mandatory COVID-19 Vaccination Requirements Under the Path Out of the Pandemic Plan Mean for Employers?"]

Getting Prepared

"Most companies in the federal supply chain are going to be subject to the vaccination requirement," said Daniel Kelly, an attorney with McCarter & English in Boston and Washington, D.C.

 He recommended that senior managers collaborate with HR and legal counsel to plan how to:

  • Determine the vaccination status of employees.
  • Meet the vaccination deadline, including providing paid time off and directions to facilities offering vaccinations.
  • Determine whether to permit an exemption to the vaccination requirement due to a disability or a religious objection.
  • Identify disciplinary measures for employees who refuse to be vaccinated or refuse to adhere to masking and social distancing protocols.

Visitors to the workplace also must comply with the guidance's minimum requirements related to masking and physical distancing while in covered contractor workplaces.

Mask Requirements

In areas of high or substantial community transmission, fully vaccinated people must wear a mask in indoor settings, except for limited exceptions, according to the guidance. In areas of low or moderate community transmission, fully vaccinated people do not need to wear a mask. "Fully vaccinated individuals do not need to physically distance regardless of the level of transmission in the area," the guidance states.

Covered contractors must require individuals in covered contractor workplaces who are required to wear a mask to:

  • Wear appropriate masks consistently and correctly over mouth and nose when indoors.
  • Wear appropriate masks in any common areas or shared workspaces, including open floorplan office space, cubicle embankments and conference rooms.
  • For individuals who are not fully vaccinated, such as visitors or those granted religious or medical accommodations, wear a mask in crowded outdoor settings or during outdoor activities that involve sustained close contact with other people who are not fully vaccinated.

Kelly recommended that employers plan how they will identify the vaccination status of visitors.

"A covered contractor may be required to provide an accommodation to covered contractor employees who communicate to the covered contractor that they cannot wear a mask because of a disability, which would include medical conditions, or because of a sincerely held religious belief, practice or observance. A covered contractor should review and consider what, if any, accommodation it must offer," the guidance states.

In addition, Stephanie Rawitt, an attorney with Clark Hill in Philadelphia, noted, "Covered contractors and subcontractors must designate a person or persons to coordinate the implementation of and compliance with the safety protocols."

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Asking Vaccination Status

The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

The Department of Health & Human Services has clarified the HIPAA Privacy Rule does not prohibit an employer from requesting an employee’s vaccination status as part of the terms and conditions of employment.

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