Federal Vaccine Mandate Requires Contractor Employees To Be Fully Vaccinated By December 8, 2021

Posted on September 27, 2021

Federal contractor employees—with some limited exceptions—must be vaccinated by December 8, 2021 per guidance released by the Biden administration on Friday.1 The mandate applies to part- and full-time employees of contractors (or subcontractors) who are working either directly on or “in connection with” a contract, including indirect support of a contract like “human resources, billing, and legal review.”2 So, even those employees who work remotely or from the contractors’ offices providing indirect support in connection with a federal contract will likely be considered covered workers subject to the vaccine mandate.

The mandate also applies to any location(s) where any covered worker is “likely to be present” during the course of a contract, including locations controlled by the contractor itself.3 In other words, an employee who is not working under a covered contract must be vaccinated if any individuals who do work under a covered contract have a risk of interacting with the non-covered employee. The mandate does not apply to an employee who is not working on a covered contract and is also kept fully separate from those working on a covered contract such that the non-covered contract employees will never interact with covered contractor employees.4 The contractor must “affirmatively determine[e] that there will be no interactions between covered contract employees and non-covered contract employees” including in common areas such as stairwells and elevators.5

The vaccine mandate applies regardless of whether an employee has previously been infected with COVID-19.6 It also applies to employees who work on covered contracts remotely, although the employee’s residence is not considered a covered contractor workplace and does not have to comply with requirements such as masking and social distancing.7 It appears that remote employees who do not work on a covered contract and never come in to a covered workplace for any reason will not have to be vaccinated unless they are slated to work on a covered contract or they have a risk of interaction with covered contract employees.

All covered contractor employees will need to be fully vaccinated by December 8 or the first day of performance on a new contract.8 “After [December 8], all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.”9Documented proof of vaccination must be required by—and provided to—the employer. An attestation of vaccination by the employee will not be sufficient.10

The mandate applies to those who hold “contracts and contract-like instruments,” including leases and cooperative agreements.11 The definition of “contracts and contract-like instruments” is subject to change pending a final rule issued by the Department of Labor.12 Masks will also be required pursuant to Centers for Disease Control and Prevention guidelines. For example, masks will be required for vaccinated individuals in areas with “high or substantial community transmission.”13 Social distancing is not required for fully- vaccinated individuals.14 Masks and social distancing are required for unvaccinated individuals when indoors and in “crowded outdoorsettings.”15

The mandate recognizes that there will be accommodations for both the vaccine and mask mandates related to disabilities, including medical conditions, or a “sincerely held religious belief, practice, or observance.”16

The mandate overrides any state or local laws or ordinances prohibiting compliance, but the mandate does not supersede more restrictive local or state standards.17

New contract solicitations will include a related clause—a model contract clause will be created by the Federal Acquisition Regulatory Council by October 8—requiring vaccination, which will apply to new contracts issued from November 14, 2021 and afterwards.18 For contracts in place prior to October 15, 2021, this new model contract clause will be incorporated if and when that contract is extended or an option is exercised.19

If you have contracts that are not covered by the order or contracts in which the option will not be exercised until after December 8, 2021, it is important to prioritize which employees need to be vaccinated earlier to ensure compliance. You should also consider if, separate and apart from this vaccine mandate, you have employees that are working at government facilities that may have vaccination requirements to work on site. It is also important to consider that an employee is not considered fully vaccinated until two weeks after the last dose of the vaccine is received.

1 “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors”, Safer Federal Workforce Task Force, Sep. 24, 2021https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20 210922.pdf.

2 Id. at 3–4, 13

3 Id. at 4, 8, 10

4 Id. at 10.

5 Id. at 10.

6 Id.

7 Id. at 11.

8 Id. at 5.

9 Id.

10 Id. at 5–6.

11 Id. at 3.

12 Id.

13 Id. at 6.

14 Id.

15 Id. at 6–7.

16 Id. at 5, 7.

17 Id. at 13.

18 Id. at 12.

19 Id. at 12.