On Friday, September 24th, pursuant to President Biden’s September 9th Executive Order (the “Order”), the Safer Federal Workforce Task Force published its COVID safety guidance for Federal Contractors and Subcontractors (the “Guidance”). The Guidance contains broad definitions of covered employees and covered workplaces and effectively will require all contractor employees to become fully vaccinated by December 8, 2021 unless they are subject to a medical or religious accommodation as described below.

The vaccine requirement will apply to all “Covered Contractor Employees.” The Guidance defines “covered” employees as:

“… any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.”

There are two important items of note in this definition.

First, “in connection with” a contract includes most back-office employees – not only those directly billable, per the Guidance this includes HR, billing, legal and contract support. These employees must be vaccinated regardless of where they work, including employees who solely work from their home offices.

Second, this definition is disjunctive, meaning that “covered employees” are either working in support of a contract or they come into your workplace for any reason. This broad definition will effectively cover all of a contractor’s employees.

The exceptions to this definition are going to be rare and we recommend that companies require all of their employees to conform with this Guidance. The goal of the Administration is to increase the number of Americans vaccinated, thus the Government’s interpretation of “covered employee” is going to be expansive. Any company that takes the opposite view runs the risk of being deemed non-compliant with its requirements. Additionally, a universal policy is easier to implement and avoids any issues of disparate treatment.

The Guidance does contain exemptions for employees who are legally entitled to an accommodation due to a disability or “sincerely held religious beliefs.” All requests for a medical exemption should be treated as a request for a disability accommodation under the Americans with Disabilities Act and treated accordingly. A request for an accommodation due to a religious belief should be examined under the requirements of Title VII of the Civil Rights Act relating to religious discrimination.

The FAR Council has been tasked with creating a FAR Clause to implement these requirements by October 8th. Prior to the formal rulemaking, the FAR Council recommends that Agencies exercise their authority under FAR Subpart 1.4’s deviation procedures to include the Clause in accordance with the time detailed in the Executive Order. This clause will be included in all new contracts, new option years, and likely contract modifications issued after this date.

The Guidance, through the Order and the upcoming FAR clause, will apply to all employees working pursuant to contracts issued on or after, or for which options to extend are exercised on or after, October 15, 2021. This means contractors have a little over two weeks to draft and implement policies and procedures in place to ensure that their covered employees are fully vaccinated.

If you have any questions on the scope of the Guidance or relating to the issues of accommodations feel free to reach out to MWL Counsels Lewis Rhodes at lrhodes@restonlaw.com or Jody Reed at jreed@restonlaw.com for assistance.