Task Force Issues New FAQs on COVID-19 Workplace Safety Guidance for Federal Contractors

On November 1, 2021, the Safer Federal Workforce Task Force (“Task Force”) issued new FAQs for federal contractors and subcontractors (“covered contractors”) which can be topic to Executive Order 14042, Making certain Sufficient COVID Safety Protocols for Federal Contractors (the “Order”), and its “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” (“Guidance”).  The Guidance is meant to make sure that COVID-19 office security protocols apply to any office areas through which a person is working on or in reference to a federal contract or contract-like instrument.  The brand new FAQs deal with vaccination and security protocols, the scope and applicability of the Guidance, and compliance.  The necessities apply to new contracts awarded on or after October 15, 2021, and to contracts entered earlier than that date when an possibility is prolonged or an extension is made.

Compliance – Refusal to Adjust to Vaccination Mandate

Most significantly, the brand new FAQs deal with the steps coated contractors ought to take if a coated contractor worker refuses to be vaccinated who has not been supplied, or doesn’t have a pending request for, an lodging.  Whereas the Task Force acknowledges that employers might use their typical processes for enforcement of office insurance policies, as directed by their worker handbooks, collective bargaining agreements, or the like, it presents as an enforcement mannequin one being adopted by federal businesses that encourages compliance moderately than instant self-discipline or termination.  Beneath that mannequin, federal businesses first provoke a restricted interval of counseling training, adopted by further disciplinary measures (together with suspension) if mandatory, however transfer to removing or termination solely after continued noncompliance.

Whereas the method is being performed out, the coated contractor should be sure that the coated contractor worker is following all office security protocols for people who usually are not absolutely vaccinated at a coated contractor office.  The worker, nonetheless, could also be denied entry to a federal office by the federal company.

Following news reports that the federal government would afford federal contractors “flexibility” in enforcement of the December 8 vaccination deadline, the FAQs additional emphasizes encouragement of compliance by federal contractors themselves.  The place coated contractors are working in good religion but encounter challenges with compliance with COVID-19 office security protocols, the Task Force directs that federal businesses ought to work with contractors to get into compliance.  Solely after a contractor fails to take steps to conform will “significant actions, such as termination of the contract,” be taken.

Vaccination and Safety Protocols – Lodging and Timing

The brand new FAQs additionally deal with lodging.  The Task Force makes clear {that a} coated contractor doesn’t must resolve all requests for lodging by the point that coated contractor staff start work on a coated contract or at a coated office.  Moderately, the contractor can nonetheless take time to evaluation and contemplate the requests for lodging, supplied the contractor requires the coated contractor worker with the pending lodging request to comply with office security protocols for people who usually are not absolutely vaccinated.

For these coated contractor staff who obtain an exemption from the vaccination requirement and work on-site at a federal office, the federal company will decide the office security protocols that such staff should comply with.  Whereas the Task Force signifies that in most circumstances people who usually are not absolutely vaccinated might want to comply with relevant masking, bodily distancing, and testing protocols, it acknowledges that “there may be circumstances in which an agency determines that the nature of a covered contractor employee’s job responsibilities at a federal workplace, or the location of their work at a federal workplace, requires heightened safety protocols.”  This features a willpower that no security protocol aside from vaccination is enough, and the unvaccinated worker shall be unable to carry out the requisite work on the federal office.  This, after all, won’t excuse the phrases of the contract from being met.  So as for businesses to evaluate applicable security measures, coated contractors should notify the company when certainly one of their staff who works onsite at a federal office has obtained an exception to the requirement to be absolutely vaccinated.

The place a coated contractor can entry a coated contractor worker’s vaccination documentation, in line with related privateness legal guidelines, the contractor doesn’t must require the worker to indicate or present documentation.

Scope and Applicability of the Guidance – Company Associates

With respect to multi-establishment company entities, the FAQs present, the place a company affiliate of a coated contractor doesn’t in any other case qualify as a coated contractor, staff of that affiliate are thought-about coated contractor staff topic to COVID-19 office security protocols if performing work at a coated contractor office.  As well as, if the office the place a coated contractor’s staff carry out work on or in reference to a coated contract is a location owned, leased, or in any other case managed by a company affiliate, that office is taken into account a coated contractor office topic to COVID-19 office security protocols.

For functions of the Guidance, the Task Force states that “business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly: (i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.”  Indicators of management embrace “interlocking management or ownership, identity of interests among family members, shared facilities and equipment, or common use of employees.”  Multi-establishment company entities should conduct this evaluation to find out if there are ample widespread controls.  It’s value emphasizing that in conducting the affiliate evaluation, the Task Force takes the expansive view that the “power to control” is alone ample for affiliate standing even when the facility has not been exercised.

Federal Workplace Safety Protocols – Masks and Social Distancing

With a lot consideration and focus on the vaccination mandate, the necessities associated to masking and bodily distancing whereas in coated contractor workplaces shouldn’t be missed.  Coated contractors should be sure that all people at a coated contractor office, together with staff and guests, adjust to printed CDC steering for masking and bodily distancing.  CDC steering for particular office settings, e.g., healthcare, transportation, correctional and detention services, and colleges, have to be adopted, if relevant.

With restricted exceptions, absolutely vaccinated folks should put on a masks in indoor settings in areas the place group transmission is “high or substantial.”  People who usually are not absolutely vaccinated, nonetheless, should put on a masks indoors and in crowded outside settings and through outside actions that contain sustained shut contact with different folks, whatever the stage of group transmission.  People required to put on a masks should put on applicable masks constantly and appropriately.  Lodging could also be required for coated staff who can’t put on a masks on account of a incapacity or due to a sincerely held spiritual perception, follow, or observance.

Absolutely vaccinated people should not have to bodily distance.  Against this, to the extent practicable, people who usually are not absolutely vaccinated should keep a distance of no less than six toes from others always, together with in places of work, convention rooms, and all different communal and work areas.

We’ll proceed to watch the continuing developments relating to federal government-mandated vaccinations and stay accessible to help corporations in figuring out the applicability and implementation of the Order’s necessities.

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