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Federal Contractor COVID-19 Vaccine FAQ Update


On November 1, 2021, the Safer Federal Workforce issued additional FAQs for Federal Contractors grappling with the Government’s COVID-19 vaccine mandate. FAR 52.223-99, which is currently making its way into numerous contracts, makes the FAQs binding, including amendments made during performance of the contract. The new FAQs contain a number of pieces of new guidance which contractors subject to FAR 52.223-99 should be aware of as the December 8, 2021, deadline comes closer.

The new FAQs provide administrative clarification for maintaining records of vaccination. Prior vaccine certification obtained by the contractors or a state immunization database is sufficient to certify vaccination. This means that contractors do not need to make a special request for certification from their employees where the vaccine records are available elsewhere.

On the issue of accommodation procedures, the new FAQs also provide some implementation clarity. Requests for medical or religious accommodations do not need to be resolved by the December 8 deadline. Covered contractor employees will need to abide by the previously published guidance on unvaccinated individuals in the workplace while the accommodation is processed.

Relatedly, contractors should notify their contracting officers when one of their employees working onsite (either at the contractor’s site or a federal workplace), has received an accommodation. Federal agencies have the discretion to exclude employees from work onsite at a Federal workplace if they determine no safety protocol would be adequate for an employee with an accommodation. If an employee is barred from work onsite at a federal workplace that does not relieve a contractor from meeting all its contractual requirements. As a result, where contractors are performing work onsite, granting an accommodation may still present significant obstacles to meeting contractual requirements.

The new FAQs also seek to provide clarity on the issue of corporate affiliates. Employees of a corporate affiliate of a covered contractor are considered covered contractor employees if they work at the covered contractor workplace. A workplace qualifies as a covered contractor workplace if it is owned by a corporate affiliate and an employee working on or “in connection with” a covered contract is likely to be present. A company is a corporate affiliate if either company is under control of the other or by a third party who controls both. This can also be determined by interlocking management or ownership, identity of interest among family members, shared facilities or equipment, or common use of employees.

Finally, the FAQs provide critical new compliance guidance. Specifically, contractors are encouraged to follow normal companywide disciplinary policy when it comes to employees who refused to comply without an accommodation. The FAQs provide the federal agency policy of a “limited period of counseling and education” before taking additional disciplinary measure as an example. The FAQs also suggest that a contracting officer will not immediately terminate a contract if the contractor is found to be working towards compliance in good-faith and contracting officers are now directed to work with contractors who are working in good faith to comply. However, “if a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken.” The new FAQs make it clear that a contractor who is not implementing a plan in good faith to vaccinate their employees will likely have their contract terminated.

If you have any questions about this legal update, please reach out to the Government Contracts group.