View of the U. S. Capitol Building dome and waving flag

The COVID-19 vaccine mandate plans for government contractors and large employers introduced by President Biden in September will cover a broad spectrum of U.S. businesses and organizations. Employers need to prepare now to determine if they are included in the mandates, how they will demonstrate compliance and how they will communicate and carry out any new vaccine-related policies to their employees and clients.

Federal agencies have so far issued more official guidance to determine who is or isn’t a government contractor than guidance related to large employers, and the mandates will likely be subject to court challenges. Still, organizations need to take preliminary steps to ensure they are prepared as needed when the mandates go into effect.

Government contractors

By Dec. 8, 2021, government contractors and subcontractors must comply with the Biden administration’s requirement that employees be fully vaccinated for COVID-19. The vaccine mandate plan was introduced by executive order (EO) on Sept. 9, 2021, and further clarified by the Office of Management and Budget on Sept. 24, 2021. The mandate applies to new solicitations and contracts entered into after Oct. 15, 2021, as well as options, orders, extensions and renewals of existing contracts entered into after that date.

The mandate is expansive and applies to all government contractors and subcontractors, including those portions of the business not who do not work directly on government contracts. (A summary of the government contractor mandate appears at the end of the story.) While there are exceptions to the order, the guidance strongly recommends applying the mandate broadly, and we have already seen GSA issue a class deviation to apply the mandate to all FSS contracts, including those for products.

The White House’s Safer Federal Workforce Task Force on Sept. 24, 2021, issued guidance for covered contractors outlining their responsibilities for ensuring that covered contractor employees comply with the workplace safety protocols. The Civilian Agency Acquisition Council issued further guidance on Sept. 30, 2021, requiring federal agencies to — starting Oct. 15, 2021 — add a clause related to these COVID-19 workplace safety protocols to covered federal procurement solicitations and contracts subject to the Federal Acquisition Regulation (FAR).

Next steps for government contractors

  • Understand their portfolio of government prime and subcontracts to determine compliance
  • Develop a compliant vaccine policy including an employee communication plan
  • Understand system(s) required to aid in the collection of vaccination and exemption documents
  • Determine how to share relevant vaccine compliance information with clients

Here are some key questions employers should consider:

Are you subject to the government contractor mandate?

The government contractor mandate may cast a wider net than many companies think. A company may not consider itself a government contractor, but its relationship to a federal contractor may place it in the position of having to comply, as companies maneuver to ensure they and their suppliers meet the new requirements. Even subcontractors two or three tiers removed will be affected by this mandate, as it applies to all parties providing services pursuant to a federal contract.

Does everyone at your company need to get vaccinated?

A company may consider its employees are not directly involved with government contract work, perhaps because they work from home or on unrelated projects, to be unaffected by this mandate; however, this is not necessarily the case. The choice for the company is to either establish internal policies as to who and who isn’t covered by the mandate (and track the job status and prevent in-person interactions of both sets of employees accurately over time) or just require all employees to be vaccinated to minimize the resources needed to properly track compliance. One of the risks in limiting the vaccine requirement to only some employees is creating two classes of employees.

The FAQs included in the White House Sept. 24, 2021, guidance note that any interactions between covered contractor employees and others in a building controlled by the covered contractor make the entire workplace a covered contractor workplace where all employees would be subject to the mandate. In addition, remote workers who tangentially touch the covered work are considered subject to the mandate, making it difficult to ascertain whether someone is truly exempt from the requirement.

How does a company communicate necessary information about the vaccine mandate to employees?

As a guide, companies generally should follow the communication plan they have used related to any other type of mandate, new HR policy or HIPAA-related information collection they have put in place. While a company can’t necessarily control internal conversations about who or who isn’t vaccinated, they should treat any official vaccine mandate reporting with the same sensitivity and confidentiality as health information about intensive medical conditions, like a cancer diagnosis. They should also consult with any professional services firm they have worked with in the past on implementing new procedures to get proper guidance on complying with the vaccine mandate.

How does a company discuss its compliance with the vaccine mandate with clients?

A company just needs to be prepared when a client asks about how it is complying with the mandate. A company does not want to take the risk of suddenly losing a client because it has not properly followed the mandate. Some contractors are more familiar with modifying existing contracts to reflect new federal requirements. Some may simply ask a company to sign a certification noting its compliance. However a company reports on its compliance, it has to keep in mind the protection of its employees’ personal health information, especially when working with another company’s system.

OSHA’s large employer mandate

In addition to the government contractor vaccine mandate, the Biden administration, through the Occupational Safety and Health Administration (OSHA), will issue regulations related to its order requiring all employers with 100 or more employees to ensure that either their employees are vaccinated or tested weekly. While less than 2% of all U.S. businesses have 100 or more employees, these large companies employ about two-thirds of all workers. The OSHA regulations are in addition to what the federal government has already decided regarding government contractors, so government contractors should not wait for the OSHA regulations to be released; act now to ensure compliance, or run the risk of losing contracts.

For more information on this topic, or to learn how Baker Tilly specialists can help assist, contact our team.

Summary of OMB guidance on vaccine mandate for government contractors

Requires compliance by Dec. 8, 2021

  • Applies to any contract extension, or renewal of an existing agreement entered into after Oct. 15, 2021
  • Applies to any new contract on or after Nov. 14, 2021

Applies to all government contractors and subcontractors, including those portions of the business who do not work on the government contracts.

Vaccination requirements

  • Requires COVID-19 vaccination of all part- or full-time employees who work in an office or on site at client
  • Applies to home-based workers who support the government contract, including HR, legal and finance professionals who review legal terms, bill or recruit for those agreements
  • Does not apply to home-based workers who do not go to office at all and who do not in any way touch government contractor work and who do not come into any physical contact with or share any space with individuals who perform covered work
  • Must make accommodations for religious/medical exemptions. Medical exemptions should be treated like requests for disability accommodations
  • Must collect proof of vaccination such as copy of immunization card or medical records. Should include name of health official/clinic who administered vaccine. Digital records are OK. Attestations are not sufficient validation
  • Prior infection or recent antibody test does not impact vaccination requirement

Workplace safety requirements

  • Must comply with CDC masking and physical distancing requirements (six feet) in the office
  • In geographic areas with high transmission rates, all employees must be masked and distanced. In areas of low transmission, only unvaccinated people are required to be masked and distanced (see CDC guidelines)
  • Applies in any nonclosed-door office and outside events that involve close contact with others. Masking is not required if alone in closed door office.
  • Masking and social distancing requirements apply to visitors to office; office must post signage of requirement and ensure compliance

Other requirements

  • Must designate person/persons to coordinate implementation and compliance of protocols
  • Must communicate policies by email, websites, flyers and signage
  • Only applies to workers in U.S.
  • Overrides any state or local laws
  • Must pass down requirements to subcontractors
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