The FAR and DFARS Deviation Clauses Directing COVID Vaccine and Other Protocols for Government Contractors: So, What Do They Mean For My Business?

As indicated in our September 10, 2021 alert, the Federal Government has now issued Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) deviation clauses implementing the President’s September 9, 2021 Executive Order 14042 “Ensuring Adequate COVID Safety Protocols for Federal Contractors” (published in the Federal Register on September 14, 2021, 86 FR 50985), which resulted in the Safer Federal Workforce Task Force issuing “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors” (Guidance) on September 24, 2021. So, what does this all mean to your business?[1]

What do the deviation regulations require? The deviation regulations, FAR 52.223-99 and DFARS 252.223-7999, both titled “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” direct all covered contractors to comply with the Guidance (including any updates) and to flow down the FAR or DFARS clause to all covered subcontractors.

Am I a covered contractor? One should assume so. The Guidance will apply to all contractors and subcontractors under a “covered contract or contract like vehicle” that exceed the simplified acquisition threshold (SAT) (FAR 2.101), where the contractors/subcontractors provide services (including construction) and where the work is to be performed in whole or in part in the United States (i.e., exclusion applies only to employees working outside the United States and outlying areas). The Guidance does not apply to contracts or subcontracts solely for the supply of products and to certain contracts/subcontracts with Indian Tribes (but not FAR/DFARS contracts with Indian or tribally owned business entities). That said, the Guidance strongly encourages agencies to extend the regulation to contracts that are not covered, which is proposed to be effected through bilateral modifications.

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. The term contract includes all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing. The term contract shall be interpreted broadly as to include, but not be limited to, any contract within the definition provided in the FAR at 48 CFR chapter 1 or applicable Federal statutes. This definition includes, but is not limited to, any contract that may be covered under any Federal procurement statute. Contracts may be the result of competitive bidding or awarded to a single source under applicable authority to do so. In addition to bilateral instruments, contracts include, but are not limited to, awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; exercised contract options; and bilateral contract modifications. The term contract includes contracts covered by the Service Contract Act, contracts covered by the Davis-Bacon Act, concessions contracts not otherwise subject to the Service Contract Act, and contracts in connection with Federal property or land and related to offering services for Federal employees, their dependents, or the general public.

NOTE: The Guidance and agency guidance being issued to contracting officers advises that, although not required, agencies may add the FAR/DFARS clause to contracts that are not covered by the Guidance. This may affect contracts below the simplified acquisition level or contracts to produce goods. 

What is the phase-in plan so I know when I can expect to see the FAR/DFARS clauses and know when they will come into effect?  You will see them soon. For applicable civilian and DoD contracts, they will appear as follows (although there are instances where agencies are sending them to contractors in advance of the mandated dates):

Solicitations issued on or after October 15, 2021, and contracts, task orders, and delivery orders awarded pursuant to those solicitations.

Contracts, task orders, and delivery orders, awarded on or after November 14, 2021, from solicitations issued before October 15, 2021, that exceed the SAT.

All extensions or renewals, issued on or after October 15, 2021, of contracts, task orders, and delivery orders that exceed the SAT.

All options exercised, on or after October 15, 2021, on contracts, task orders, and delivery orders that exceed the SAT.

Existing indefinite-delivery, indefinite-quantity contracts that are anticipated to have orders that exceed the SAT and that have an ordering period that extends beyond October 15, 2021.

NOTE: The Guidance and agency guidance to contracting officers advises that, although not required, contracting officers may add the FAR/DFARS clauses in advance of mandated deadlines.   

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.

For how long will I have to comply with the Guidance?  A covered contractor must comply with the Guidance for the duration of one’s contract, which includes the FAR/ DFARS deviation clause or any successor.

Covered Employees

Who are my “covered contractor employees?”  Pretty much everyone in the company tied to a government contract. The term means 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 (e.g., HR, accounting, legal review).

Covered Workplace

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.

Are the workplace safety protocols the same irrespective of whether the work is performed at a covered contractor workplace or at a Federal workplace? Yes. The Guidance applies to all covered contractor employees and to all contractor or subcontractor workplace locations. Covered contractor employees must also comply with any additional Federal agency workplace safety requirements for that workplace when they work onsite.

Are our multiple other buildings, facilities or sites on our campus we control covered workplaces if our covered contractor employee(s) only work in one building, site or facility? Yes, unless you can affirmatively determine that none of your employees in or at one building, site, or facility will come into contact with a covered contractor employee during the period of performance of a covered contract. This would include affirmatively determining that there will be no interactions between covered contractor employees and non-covered contractor employees in those locations during the period of performance on a covered contract, including interactions through use of common areas such as lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.

What if our covered contractor employee is likely to be present during the period of performance for a covered contract on only one floor or a separate area of a building, site, or facility controlled by a covered contractor? Do other areas of the building, site, or facility controlled by a covered contractor constitute a covered contractor workplace? Yes, unless you as a covered contractor can affirmatively determine that none of your employees on another floor or in separate areas of the building will come into contact with a covered contractor employee during the period of performance of a covered contract. This would include affirmatively determining that there will be no interactions between covered contractor employees and non-covered contractor employees in those locations during the period of performance on a covered contract, including interactions through use of common areas such as lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.

Must I comply with the Guidance if my or my subcontractor’s covered workplace is outdoors? Yes.

Vaccines

What are the vaccine requirements?  Covered contractors must ensure that all “covered contractor employees” are “fully vaccinated” for COVID-19, by December 8, 2021, unless the employee is legally entitled to an accommodation. After December 8, 2021, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded contract or 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.

NOTE: Although not required, the Guidance “strongly encourages” covered contractors to incorporate vaccination requirements similar to those in the Guidance into their non-covered contracts and agreements with non-covered contractors whose employees perform work at covered contractor workplaces but who do not work on or in connection with a Federal contract (e.g., contracts and agreements related to the provision of food services, onsite security, or groundskeeping services at covered contractor workplaces).

What does fully vaccinated mean? (1) People are considered fully vaccinated for COVID-19 two weeks after they have received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine. With the exception noted below, there is currently no post-vaccination time limit on fully vaccinated status although this may be adjusted by the CDC at some future date. (2) Employees are fully vaccinated if they have received COVID-19 vaccines currently approved or authorized for emergency use by the U.S. Food and Drug Administration (Pfizer-BioNTech, Moderna, and Johnson & Johnson [J&J]/Janssen COVID-19 vaccines) or COVID-19 vaccines that have been listed for emergency use by the World Health Organization (e.g., AstraZeneca/Oxford). In addition, clinical trial participants from a U.S. site who are documented to have received the full series of  an “active” (not placebo) COVID-19 vaccine candidate, for which vaccine efficacy has been independently confirmed (e.g., by a data and safety monitoring board), can be considered fully vaccinated two weeks after they have completed the vaccine series. Currently, the Novavax COVID-19 vaccine meets these criteria.

Do I have to provide onsite vaccines? No, although you may do so. You should ensure employees are aware of convenient opportunities to be vaccinated.

How do I know if my employees are vaccinated? You must review your covered employees’ documentation to prove vaccination status. You must require covered contractor employees to show or provide you as their employer with one of the following documents (although you may allow employees to show or provide a digital copy of such records, including, for example, a digital photograph, scanned image, or PDF): a copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020), a copy of medical records documenting the vaccination, a copy of immunization records from a public health or state immunization information system, or a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering the vaccine. If you keep a copy of the vaccination record, it must be treated as a confidential medical record.

What if my employees say they lost or do not have their vaccination record? That is not an excuse, and an attestation of vaccination by the employee is an unacceptable substitute. Employees needing new vaccination cards or copies of other documentation proof should first contact the vaccination provider site where they received their vaccine. Their provider should be able to provide them with new cards or documentation with up-to-date information about the vaccinations they have received. If the location where the covered contractor employees received their COVID-19 vaccine is no longer operating, the employees should contact their state or local health department’s immunization information system (IIS) for assistance. You should advise covered contractor employees to contact their state or local health department if they have additional questions about vaccination cards or vaccination records.

Can I exempt employees who assert they do not need to be vaccinated because they already had COVID or have had a recent antibody test? No. The employees still must be vaccinated.

If my employees work remotely at home, must they be vaccinated? Yes. All covered employees must be vaccinated. See below regarding masking and social distancing.

If my employees work at a Federal jobsite, must they be vaccinated? Yes. Because covered contractor employees working on a covered contract need to be fully vaccinated after December 8, 2021, covered contractor employees who work at a Federal workplace need to be fully vaccinated by that date as well, unless legally entitled to an accommodation.

Masking and Social Distancing

What are the masking and social distancing requirements?  The masking and social distancing requirements focus on what a covered contractor must do at a covered workplace. In general, covered contractors must ensure that all individuals, including covered contractor employees and visitors, comply with published CDC guidance for masking and physical distancing at a covered contractor workplace.

Will any face covering be acceptable?  No. The following do not constitute masks for purposes of the Guidance: masks with exhalation valves, vents, or other openings; face shields only (without mask); or masks with single-layer fabric or thin fabric that does not block light.

Otherwise it is acceptable to use any mask that is consistent with CDC recommendations as set forth in Types of Masks and Respirators | CDC. This may include the following: disposable masks, masks that fit properly (snugly around the nose and chin with no large gaps around the sides of the face), masks made with breathable fabric (such as cotton), masks made with tightly woven fabric (i.e., fabrics that do not let light pass through when held up to a light source), masks with two or three layers, masks with inner filter pockets, and filtering facepiece respirators that are approved by the National Institute for Occupational Safety and Health or consistent with international standards.

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.

Where do I find the CDC Guidance?  Covered contractors must check the CDC COVID-19 Data Tracker County View website for community transmission information in all areas where they have a covered contractor workplace at least weekly to determine proper workplace safety protocol. The CDC webpage will identify the level of community spread for your area: High, Substantial, Moderate, or Low.

What are the rules? In areas of high or substantial community transmission, as reported by the CDC, fully vaccinated people must wear a mask in indoor settings, except for limited exceptions discussed below. In areas of low or moderate community transmission, fully vaccinated people do not need to wear a mask. Fully vaccinated individuals do not need to physically distance regardless of the level of transmission in the area. Individuals who are not fully vaccinated must wear a mask indoors and in certain outdoor settings (see below) regardless of the level of community transmission in the area. To the extent practicable, individuals who are not fully vaccinated should maintain a distance of at least six feet from others at all times, including in offices, conference rooms, and all other communal and workspaces.

What if the CDC ratings change for the area(s) in which my covered workplace(s) is/are located? When the level of community transmission in the area of a covered contractor workplace increases from low or moderate to substantial or high, contractors and subcontractors should put in place more protective workplace safety protocols consistent with published guidelines. However, when the level of community transmission in the area of a covered contractor workplace is reduced from high or substantial to moderate or low, the level of community transmission must remain at that lower level for at least two consecutive weeks before the covered contractor utilizes those protocols recommended for areas of moderate or low community transmission.

What are the details about wearing a mask inside and outside at a covered workplace? Covered contractors must require individuals in covered contractor workplaces who are required to wear a mask to:

Wear appropriate masks consistently and correctly (over mouth and nose).

Wear appropriate masks in any common areas or shared workspaces (including open floorplan office space, cubicle embankments, and conference rooms).

For individuals who are not fully vaccinated, wear a mask in crowded outdoor settings or during outdoor activities that involve sustained close contact with other people who are not fully vaccinated, consistent with CDC guidance.

What if someone objects to wearing a mask because of a disability or sincerely held religious belief?  Please see discussion below. The same accommodation rules apply to individuals objecting to wearing a mask as for vaccinations.

Are there any exceptions to mask rules other than for an asserted medical or religious exemption? Yes. You may request individuals to lower their masks briefly to verify identification. You also may provide for exceptions to mask wearing and/or physical distancing requirements consistent with CDC guidelines, for example, when an individual is alone in an office with floor to ceiling walls and a closed door, or for a limited time when eating or drinking and maintaining appropriate distancing. You may also provide exceptions for covered contractor employees engaging in activities in which a mask may get wet; high intensity activities where covered contractor employees are unable to wear a mask because of difficulty breathing; or activities for which wearing a mask would create a risk to workplace health, safety, or job duty as determined by a workplace risk assessment. An authorized representative of your company must approve any such exceptions in writing to ensure compliance with this Guidance.

Objections and Accommodations

What do I do about employees who are not vaccinated who object to vaccination and/or object to wearing a mask? It depends. If an employee chooses not to be vaccinated or wear a mask due to a political belief or fear of the vaccine or an assertion of personal choice, the individual can be required to comply with the mask or vaccination mandate or be subject to an adverse employment action. On the other hand, if employees assert that they are not vaccinated or cannot wear a mask because of disability/medical condition or a sincerely held religious belief, practice or observance that prevents the employee from getting any of the available vaccines, the employer is required to provide a reasonable accommodation if one is possible and does not pose an undue hardship on the employer. Such accommodation requests should be submitted in writing, signed by the employee and, for medical requests, also verified by a healthcare provider. You are responsible for considering and disposing of such requests for accommodations regardless of the employee’s place of performance. If you are a joint employer with an agency that is party to the covered contract, for purposes of compliance with the Rehabilitation Act and Title VII of the Civil Rights Act, both you and the agency should review and consider what, if any, accommodation they must offer.

There is no precise standard for how to manage accommodation requests. Every situation will need to be addressed on its own merits. You may reasonably request substantiation of the disability or request further information to support whether the employee’s religious belief is sincerely held. Reasonable accommodations should be considered on a position-by-position basis, and they likely will vary. Common accommodations include masking, weekly testing, social distancing, remote work, and inability to travel for work or meet in person with clients. In some instances, circumstances may prevent a reasonable accommodation, and removal from the workplace may be required. Any discipline or removal will be sensitive and may benefit from advice of employment counsel.

Visitors

Does the Guidance apply to our visitors, and how do we make that work? Yes, the Guidance does apply to all visitors to your covered workplace. You should post signage at entrances to covered contractor workplaces providing information on safety protocols for fully vaccinated and not fully vaccinated individuals and instruct individuals to follow the appropriate workplace safety protocols while at the covered contractor workplace. You may take other reasonable steps, such as by communicating workplace safety protocols to visitors prior to their arrival at your workplace or requiring all visitors to follow masking and physical distancing protocols for not fully vaccinated individuals. Please see below regarding duties of a designated COVID official.

Other Laws and Regulations

What about all the other Federal, state, and local rules? How do we decide what rules to follow? 

1. For covered contractors, the Guidance via the FAR/DFARS deviation clauses overrides any state and local laws, ordinances, or regulations other than those that prescribe more protective workplace safety protocols than the Guidance. Under the Supremacy clause of the United States Constitution, Federal law supersedes inconsistent state and local laws such as those that seek to bar compliance with the Guidance vaccine and other protocols.
2. Occupational Safety and Health Administration Guidance (OSHA): Per the President’s Executive Order, OSHA is expected to issue emergency regulations soon addressing COVID protocols for all companies with more than 100 employees.  Covered contractors, however, are expected to comply with the Guidance via the FAR/DFARS deviation clause regardless of what other workplace rules they are required to follow. We understand that the OSHA regulation is expected to be less strict than the Guidance, but we will provide an update when the new OSHA regulation is issued.

Designated COVID Official

What are the requirements for a designated COVID official? You must designate a person or persons to coordinate implementation of and compliance with the Guidance and the workplace safety protocols at covered contractor workplaces. The designated person or persons may be the same individual(s) responsible for implementing any additional COVID-19 workplace safety protocols required by local, State, or Federal law, and their responsibilities to coordinate COVID-19 workplace safety protocols may comprise some or all of their regular duties. 

What is the designated official required to do? The designated individual (or individuals) must ensure that information on required COVID-19 workplace safety protocols is provided to covered contractor employees and all other individuals likely to be present at covered contractor workplaces, including by communicating the required workplace safety protocols and related policies by email, websites, memoranda, flyers, or other means and posting signage at covered contractor workplaces that sets forth the requirements and workplace safety protocols in the Guidance in a readily understandable manner. This includes communicating the COVID-19 workplace safety protocols and requirements related to masking and physical distancing to visitors and all other individuals present at covered contractor workplaces. The designated individual (or individuals) must also ensure that covered contractor employees comply with the requirements in the Guidance related to the showing or provision of proper vaccination documentation. Also, the designated official needs to monitor the CDC for updates every week and be aware of any changes made to the Guidance.

We will plan to issue updates if there are significant changes to these obligations. For questions, please contact Tony Anikeeff, Laura Windsor, David Burton, or Bob Korroch.