What the Federal Guidance on President Biden’s Vaccine Mandate Means for Government Contractors


The Safer Federal Workforce Task Force released mandatory guidelines for federal contractors, implementing President Biden’s Executive Order requiring contractor employees to be vaccinated against COVID-19 (as discussed in our September 10, 2021 E-lert).

Who Must Comply? Not all contractors are covered by the Guidance. First, the Guidance applies to certain contracts that are renewed or extended on or after October 15, 2021 and to new contracts awarded on or after November 14, 2021. Note that the agency should notify the contractor if it is subject to this Guidance. Federal agencies are also encouraged to incorporate the Guidance’s requirements into other contracts – so contractors should pay attention to any changed requirements from their contracting agencies, particularly with regard to contracts that are entered into, renewed or extended before the October 15 date. This is also true with regard to those contracts that are not otherwise covered by the EO.

Those with existing federal contracts are not subject to this Guidance but will continue to be subject to the vaccination-or-test protocol previously established.

The Guidance also applies to all lower-tier subcontractors, except for those who are only providing products. The contractors must ensure that it incorporates a clause requiring compliance with the Guidance in its contracts with its direct subcontractors, who are then required to incorporate the same clause in lower level subcontracts.

Which Employees Are Covered by the Guidance? All employees working on or in connection with (this includes those whose services are indirectly necessary to the performance of a contract – such as human resources, billing, and legal review) a covered contract and all employees working at the contractor’s workplace.

The workplace is any location where the employee(s) working on or in connection with a contract are likely to be present, including outdoor locations, but does not include employees’ homes.

The Guidance specifically provides that if a covered employee works only in one area of a building, or one building in a series of buildings, the entire building, facility or site is still covered unless the contractor can establish that none of their other employees will come into contact with the covered employee during the contract period in any common area, including lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.

What’s the Vaccination Requirement? All covered employees must be fully-vaccinated by December 8, 2021. That means they must have received the second/only shot by November 24. And if it is a two-shot regimen, that means the first Moderna shot must be no later than October 27, while the first Pfizer shot must be no later than November 3. Those who previously had COVID-19 are still required to be fully-vaccinated. The requirement also applies to employees working remotely on a covered contract (although the rest of the Guidance’s requirements for workplaces, such as masking and distancing, do not apply to them). After December 8, employees must be fully-vaccinated by the first day of performance on the covered contract.

“Fully-vaccinated” means two weeks after the second dose of Pfizer-BioNTech or Moderna, or two weeks after the single dose of Johnson & Johnson/Jannsen. The Task Force also states that certain clinical trial participants may also be considered fully-vaccinated (as discussed in our blog post, Foreign COVID Vaccinations and Clinical Trials? What Employers Need to Know).

Contractor employers must provide exemptions as reasonable accommodations for employees with disabilities or religious needs, to the extent that such exemptions do not pose an undue hardship. If the agency is a joint employer with the contractor of the employee in question, both will be responsible for reviewing and assessing the request for accommodation. (This also applies to any request for a medical or religious exemption to the masking requirement, discussed below).

The Guidance states that, based on “urgent, mission-critical need,” agency heads may approve exceptions to the fully-vaccinated requirement for contractor employees, but that the contractor must ensure that such employees are fully-vaccinated within 60 days of commencing work on the contract or at a covered workplace, and that they comply with masking and distancing requirements.

Employers do not need to provide onsite vaccinations, but should inform their employees of convenient vaccination options.

What Is Acceptable Proof of Vaccination? The Guidance lists the following, which may be provided in digital format (e.g. digital photograph, scanned image, or pdf):

  • a copy of the record of immunization from a health care provider or pharmacy,
  • a copy of the CDC’s COVID-19 Vaccination Record Card
  • 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 vaccine

An employee’s attestation of vaccine status or an antibody test is not acceptable. If an employee loses their vaccination record, they should contact their vaccination provider site for a copy. They may also contact their State or local health department’s immunization information system (IIS) for assistance and their State or local health department for further questions.

What Are the Masking/Distancing Requirements? Fully-vaccinated employees need not physically distance. In areas of low or moderate community transmission, they need not mask. In areas of substantial or high transmission, however, they must mask while indoors. Any increase in the transmission level requires an immediate change in protocol, while reduction in the community transmission level must be in place for two weeks before a change may be implemented.

Those who are not fully-vaccinated must mask while indoors. They must also mask outdoors in crowded settings or where they will be in sustained close contact with other unvaccinated individuals. At all times, they must physically distance from others to the extent possible.

Exceptions to the masking requirement are permitted consistent with CDC guidance, which includes:

  • when an individual is alone in an office with floor to ceiling walls and a closed door
  • for a limited time when eating or drinking and maintaining appropriate distancing
  • when engaging in activities in which a mask may get wet
  • when unable to wear a mask during high intensity activities 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

The exceptions must be approved in writing by an authorized employer representative. In addition, contractor employers may need to provide an exemption to the masking requirement as a reasonable accommodation for medical or religious needs, unless that poses an undue hardship.

Employees may briefly lower their masks for identification purposes.

What Is the COVID Workplace Safety Coordinator Requirement? Contractors must designate one or more persons to coordinate implementation of and compliance with the Guidance, including the vaccination documentation requirement. The coordinator must also ensure that the protocols are communicated in a readily understandable manner to contractor employees and others present in the workplace. This can be done by email, websites, memoranda, flyers, or posting signage.

What If There Are Conflicting State or Local Requirements? The Guidance specifically states that it “supersede[s] any contrary State or local law or ordinance,” including those that seek to prohibit compliance with any of the protocols in the Guidance.

How Does This Interact With Other Workplace Safety Standards? Contractors must comply with these requirements regardless of whether others (like the forthcoming OSHA Emergency Temporary Standard) also apply.

Will the Guidance Be Updated? Yes, if circumstances change. Covered contractors will be required to comply with any revised guidance immediately. We will keep you posted on any developments.