On September 9, 2021, President Biden issued Executive Order 14042 which requires all federal contractors and subcontractors to comply with new FAR/DFARS deviation clauses that ensure adequate COVID safety protocols. The new clauses specify that the contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (“Task Force”), provided that the Director of the Office of Management and Budget (“OMB”) approves the Task Force Guidance (the or this “Guidance”) and determines that the Guidance, if adhered to by covered contractors, will promote economy and efficiency in Federal contracting. The order became effective on 10/15/2021.
In summary, what does the Guidance require?
In broad brush, contractors must (i) ensure their covered employees are fully vaccinated unless exempted; (ii) ensure the company reviews and adheres to current Centers for Disease Control information for its geographical area regarding community spread levels to ascertain appropriate masking and social distancing protocols; (iii) appoint an individual to be responsible for ensuring compliance; (iv) flow down the FAR/DFARS deviation clause to their first tier subcontractors and instruct them to do so regarding their lower tier subcontractors; (iv) comply with state and local laws that impose stricter requirements than the Guidance but not others; and (v) comply with Federal regulations when accessing a Federal facility. Click here for a detailed summary of what the new order requires.
What is a covered contract or contract-like vehicle?
The Guidance endeavors to be sweeping in its reach so one should assume one’s agreement with the Federal Government is covered. It applies both to small business entities and other-than-small entities. Borrowing from a Department of Labor proposed regulation, the Guidance defines the term to mean:
an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law. This definition includes, but is not limited to, a mutually binding legal relationship obligating one party to furnish services (including construction) and another party to pay for them.
What is a “covered contractor workplace?”
This means any location controlled by a covered contractor at which 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. A covered contractor workplace does not include a covered contractor employee’s residence.
If my employees work remotely at their residences, must they wear a mask?
No. One’s residence is not a covered contractor workplace, so the individual need not comply with masking and social distancing requirements for covered contractor workplaces while in the residence, even while working on a covered contract. However, the individual is still a covered employee and must still comply with the vaccine requirement.