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As it stands today, compliance requires contractors and subcontractors to submit proof of vaccination. Attestations and anti-body tests are not adequate documentation, only records of vaccination will suffice. Documentation must be obtained from any full-time or part-time employee who works on, or in connection with, a covered contract regardless of where the work is performed. This also includes those employees working at a covered contractor workplace. View the diagram to help you decide where and how your employees may need to comply if you work on federal contracts either as a prime contractor or subcontractor.
If you are serving federal government customers, you have likely heard of, and could be subject to, Executive Order (EO) 14042 “Ensuring Adequate COVID Safety Protocols.” The EO is to ensure those supporting the federal government have adequate safeguards in place to protect their workforce from COVID-19. At its core, the EO directs the inclusion of a clause mandating vaccination for all covered employees in all applicable federal contracts and contract-like instruments entered on or after Oct. 15, 2021. This is also applicable to similar contracts that will be extended or renewed. The clause directs contractors and subcontractors at any level to comply with the guidance from the Safer Workforce Task Force.
The Safer Federal Workforce Task Force provides guidance on EO 14043 and 14042 requirements. Per the FAQs on the task force’s website, EO 14043 states that federal employees must have received the last dose of their vaccine no later than Nov. 8, 2021. This will allow federal employees to reach full immunity by the Nov. 22, 2021 deadline. Covered contractors, defined as prime contractors or subcontractors working on or in connection to a covered contract, or working at a covered contractor location, must be vaccinated by Jan. 4[SB1][KL2][CW3] , 2022. This enables them to meet the final deadline of full vaccination status by Jan. 18, 2022 unless legally entitled to an accommodation for medical or religious regions.
As it stands today, compliance requires contractors and subcontractors to submit proof of vaccination. Attestations and anti-body tests are not adequate documentation, only records of vaccination will suffice. Documentation must be obtained from any full-time or part-time employee who works on, or in connection with, a covered contract regardless of where the work is performed. This also includes those employees working at a covered contractor workplace. View the diagram below to help you decide where and how your employees may need to comply if you work on federal contracts either as a prime contractor or subcontractor.
The EO also requires that all resources working in a covered workplace adhere to the CDC’s guidance on masking and social distancing. This includes third parties who are not tied to a covered contract but have access to covered sites.
The federal government understands that adhering to these requirements will take some time and are requesting companies to make a “good faith” effort to adhere to the requirements. This means following existing workplace safety policies, determining covered employee populations, and establishing guidance for compliance. To be operating in good faith, companies should demonstrate that they are tracking the information obtained from their employees. Failure to comply with the requirements of the EO could result in the termination of a contract.
OSHA was tasked by the Biden administration to also develop vaccination requirements. Ultimately, it followed suit by implementing a similar requirement called the Emergency Temporary Standard (ETS) for commercial organizations of 100+ employees and for health care facilities working with Medicare and Medicaid programs. The ETS requires that employees receive one or both vaccines by Jan. 4, 2021. If an employee is unable to receive the vaccine, they must be tested weekly. The requirements do not apply to those who are working from home or who work exclusively outdoors. Similar to the EO, the ETS requires that companies maintain a written policy and retain proof of vaccination. Companies may face a $14,000 fine per violation if they do not adhere to the OSHA requirements.
|
Requirements by January 4, 2022 |
EO 14042 |
ETS |
|---|---|---|
|
Vaccine requirements for employees working onsite |
X |
X |
|
Vaccine requirements for employees working remote |
X |
|
|
Vaccine requirements for employees working exclusively outside |
X |
|
|
Employees may opt out and be subject to testing weekly and adhering to masking requirements |
|
X |
|
CDC Guidance or state requirements prevails on masking and social distancing |
X |
X |
|
EO 14042 supersedes ETS |
x |
|
|
Oversight person required and designated to ensure compliance |
x |
x |
There are multiple issues with these requirements, including lawsuits filed by multiple states, with more issues popping up. Sixteen states (Alaska, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming) have joined together, with some filing a lawsuit in Missouri’s federal district court, while others (Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia) have filed a similar joint lawsuit in Georgia. Texas and Florida have filed individual lawsuits.
On Nov. 6, 2021, the Fifth Circuit granted a stay of OSHA’s ETS so there is much uncertainty. Moreover, the FAR clause being incorporated into federal contracts did not follow customary procedures as outlined in the FAR as there was no comment period when the clause was released. Another major issue with the mandate is that per the FAR, covered contractors should adhere to guidance provided on the Safer Federal Workforce Task Force website. But the guidance is changing constantly. The mandate also uses a very broad term for covered employees so that it even applies to employees of an affiliated company.
As news around the mandate continues to develop, our counsel to contractors is to be sure you understand your requirements, your employees’ ability to comply (or exemptions thereof), and to communicate often to make any needed accommodations to stay compliant with your contracts and/or OSHA. Stay tuned as CohnReznick tracks future developments around EO 14042.
Subject matter expertise
Christine Williamson
CPA, PMP, Partner
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This has been prepared for information purposes and general guidance only and does not constitute legal or professional advice. You should not act upon the information contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is made as to the accuracy or completeness of the information contained in this publication, and CohnReznick LLP, its partners, employees and agents accept no liability, and disclaim all responsibility, for the consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in this publication or for any decision based on it.