Clarification for Government Contractors Regarding Vaccine Attestation and Testing

The Biden Administration released guidance on Aug. 3, 2021, providing additional clarification regarding COVID-19 vaccine attestation and testing for government contractor personnel who work on a federal government-controlled worksite.

Key points impacting government contractors include: 

• Federal agencies have been directed to provide onsite contractors with the U.S. Office of Management and Budget's (OMB) Certification of Vaccination form, which should be completed as a requirement of entering a government-controlled worksite. Onsite contractor personnel will not be required to show proof of vaccination, but any individual who provides false information on the certification form may be subject to adverse action, including removal from the contract.
• With very limited exceptions, the federal government will not collect and maintain certification forms completed by contractor personnel. Instead, contractor personnel should keep a copy of the completed form with them while at the worksite and should be prepared to show the completed form when entering the worksite or at the request of a federal employee who oversees the contractor's work. To promote ease of completion and subject to contract restrictions, government agencies may distribute the certification form to contractor personnel electronically or may facilitate compliance by having the contractor certify the full vaccination status of its onsite contractor personnel.
• Onsite contractor personnel who are not fully vaccinated or who decline to report their status on the certification form "will either be enrolled in the agency's testing program or required to show proof of a negative COVID-19 test result from within the previous three days before entry to a federal building or federally controlled indoor worksite." Government agencies have discretion to decide what types of tests or test results they will accept, so long as the test is authorized by the U.S. Food and Drug Administration (FDA) and produces a dated result. Onsite contractor personnel enrolled in an agency testing program will not need to provide outside test results.
• Government agencies may take a "reasonable period of time" to establish their program vaccine attestation and testing for their employees and onsite contractors consistent with the guidance.

The additional guidance provides important clarification for contractors that was lacking in Executive Order 13991: Protecting the Federal Workforce and Requiring Mask-Wearing, but a number of questions remain unanswered, and it is clear that different government agencies will likely implement different procedures. For now, contractors should consider taking the following actions to prepare for compliance:  

• Proactively communicate with the government customer or prime contractor on each government contract to confirm the company is aware of the new guidance and is prepared to comply once further instruction is provided on the implementation process. Opening the lines of communication before implementation plans are finalized may provide an opportunity to answer questions that influence final decisions regarding process.
• Take steps to evaluate the potential compliance impact. If employees' vaccination status is not yet confirmed, doing so now will give you a good sense of the potential challenges the company may be facing, particularly if large numbers of employees will need to submit to periodic testing. Absent contrary state or local law, employers may ask employees to confirm their vaccination status and if they are planning to become fully vaccinated. In preparing to implement the new requirements, companies will likely proceed differently if a handful of employees will not attest to vaccination versus a majority of onsite personnel.
• To the extent the new rules require the company to invest financial resources to comply, consider following the procedures set forth in a contract's "Changes" provision – generally found at the FAR 52-243 provision incorporated into the contract. While it remains unclear whether contractors ultimately will be eligible for additional funds through a request for equitable adjustment (REA), contractors should give themselves the best chance to succeed by insisting on written direction from their contracting officer imposing the new rules and by maintaining audit-ready records of their additional costs.
• Consider a preliminary communication with affected employees to let them know that the company is monitoring the government's new requirements for contractors and that specific information regarding implementation will be provided as soon as it is available to the company. Let employees know that, at a minimum, they will need to either attest to full vaccination status under penalty of removal from the contract or submit to a regular testing protocol as prescribed by the customer. Encourage employees who have questions and concerns about either option to contact human resources or other points of contact as appropriate so there is time to evaluate and address employee concerns and potential requests for accommodation.
• Ensure familiarity with obligations under federal, state and local anti-discrimination laws to evaluate any requests for reasonable accommodation for employees with disabilities or sincerely held religious beliefs. In any instance where an employee takes the position that they cannot submit to either vaccination or testing for a legally protected reason, consider contacting employment law counsel for further guidance.

Review the broader Safer Federal Workforce guidance and frequently asked questions, which outline expectations with respect to other health and safety protocols contractor personnel will be expected to follow while on federal worksites.