GSA and the VA Update COVID-19 Vaccination Requirements, Timelines and Testing Rules

Update: As noted below, government requirements for vaccination, masking and testing are in constant flux. On Sept. 9, 2021, President Joe Biden released a number of new vaccine mandates, one of which targets federal contractors, discussed in a Sept. 10 Holland & Knight Government Contracts alert. Landlords and lessors to the government are federal contractors, so these mandates will apply to all employees and subcontractors – to include janitorial and maintenance service providers – servicing federal leases to the GSA, the VA and all other government agencies. While this requirement may not apply to higher-level ownership of Special Purpose Entities, landlords and property owners should continue to monitor this space as President Biden also has directed the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) implementing vaccination or testing requirements for all U.S. businesses with 100 or more employees. As such, even those higher-level ownership entities which are excluded from the Executive Orders' coverage should determine whether they may still have to comply with the ETS.

Over the past few weeks, landlords leasing space to the General Services Administration (GSA) have begun to receive notices of requirements that all personnel operating in GSA space certify as to whether or not they have been fully vaccinated. GSA is also requiring individuals maintain copies of the certification on their person when in GSA-leased spaces.

At the same time, the U.S. Department of Veterans Affairs (VA), relying upon its independent statutory authority, has implemented new rules mandating all personnel in its medical facilities – to include community-based outpatient centers (CBOCs) – be vaccinated or obtain a legitimate religious or medical exemption.

Landlords and service providers should monitor this issue closely in the coming months. The requirements and deadlines are changing week to week – and sometimes day to day – in response to changing circumstances and guidance from the Biden Administration. Below is a current snapshot of both the GSA and VA requirements, as well as the regulatory framework in which these requirements are grounded.

Background: Executive Order and Task Force Recommendations

On President Joe Biden's first day in office, Jan. 20, 2021, his administration issued Executive Order 13991 – Protecting the Federal Workforce and Requiring Mask Wearing. Through this executive order, the Biden Administration created the Safer Federal Workforce Task Force, which is co-chaired by the director of the Office of Personnel Management (OPM), the administrator of the GSA and the president's COVID-19 response coordinator. The Task Force's mission was defined as follows:

The Task Force shall provide ongoing guidance to heads of agencies on the operation of the Federal Government, the safety of its employees, and the continuity of Government functions during the COVID-19 pandemic. Such guidance shall be based on public health best practices as determined by CDC and other public health experts, and shall address, at a minimum, the following subjects as they relate to the Federal workforce . . .

The following subjects are included in the Task Force's purview:

• testing methodologies and protocols
• case investigation and contact tracing
• equipment needs and requirements, including personal protective equipment (PPE)
• vaccine prioritization, distribution and administration
• circumstances under which exemptions might appropriately be made to agency policies in accordance with The Centers for Disease Control and Prevention (CDC) guidelines such as for mission-critical purposes

On July 29, the Task Force issued an updated version of its Agency Model Safety Principles, which states that executive departments and agencies should require employees, subcontractors and visitors to public buildings to disclose their vaccination status:

Given the different safety protocols for individuals who are fully vaccinated and those who are not fully vaccinated, agencies need to ask about the vaccination status of Federal employees and onsite contractors. Employees and onsite contractors must attest to the truthfulness of the response they provide. If an employee or onsite contractor chooses not to provide a response, they will be treated as not fully vaccinated for the purposes of these protocols.

The Task Force also issued a set of frequently asked questions (FAQs) that clarifies the recommendation for all U.S. government agencies:

Agencies should provide onsite contractors with the Certification of Vaccination form when they enter a federal building or federally controlled indoor worksite.

Unless an agency has an existing system of records notice that permits it to collect and maintain this information on its contractors, agencies will direct onsite contractors to complete the Certification of Vaccination form and keep it with them during their time on federal premises—they may be asked to show the form upon entry to a federal building or federally controlled indoor worksite and to a federal employee who oversees their work. Onsite contractors who are not fully vaccinated (or who decline to disclose vaccination status) 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 3 days before entry to a federal building or federally controlled indoor worksite.

The Task Force's proposed Certification of Vaccination form requires individuals to make the following representation that coincides with their vaccination status. For example:

• I am fully vaccinated.
• I am not yet fully vaccinated.
• I have not been vaccinated.
• I decline to respond.

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Employees who are unvaccinated, are not fully vaccinated, or who choose not to provide vaccine information are required to comply with CDC and agency guidance for not fully vaccinated individuals, including wearing masks regardless of the transmission rate in a given area, physical distancing, regular testing, and adhering to applicable travel restrictions.

GSA Implementation

GSA has now implemented the executive order and the Task Force's recommendations by requiring, as of Aug. 25, 2021,¹ that all GSA landlords require all landlord personnel – to include any subcontractors who operate in GSA-leased buildings such as maintenance or janitorial staff and front-desk operators – to complete the Certification of Vaccination Form and to keep it with them at all times.

The form GSA email that appears to have gone out to all GSA landlords reads as follows:

Dear GSA Lessor:

The Safer Federal Workforce Task Force has issued additional information related to vaccination and testing requirements for access to facilities under the jurisdiction, custody and control of the U.S. General Services Administration (GSA) (GSA-controlled facilities).

As a result, please be aware that a paper copy of the form linked below is required for entry to GSA-controlled facilities, effective Wednesday, August 25, 2021. Please instruct your employees to print and complete the form. Lessor employees must be prepared to present the form to security officers at building entrances, as applicable and keep a copy of the form with them while onsite.

This requirement will be imposed upon all persons with access to GSA-leased space, including building personnel in common spaces used by the VA such as atriums, break rooms, gyms and other shared facilities.

Additionally, GSA is now requiring weekly testing for non-vaccinated employees. The Task Force's FAQs highlight that this a mandatory requirement for all contractor employees:

Agencies must establish a screening testing program for SARS-CoV-2, the virus that causes COVID-19, to test federal employees and contractor employees who work onsite and who are not fully vaccinated or who have declined to provide their vaccination information. Enrollment in this testing program is mandatory for those individuals and they must be tested at least once a week. 

The Task Force provides the following guidance on acceptable testing techniques:

Agencies may utilize any COVID-19 viral test, such as a PCR or antigen test, that has been authorized by the Food and Drug Administration to detect current infection. Any test that an agency utilizes must include a report that documents the test result and can be provided to the federal employee or contractor employee who was tested, the agency, or both. If the results are provided to the federal employee or contractor employee who was tested, the agency must establish a means for the federal employee or contractor employee to provide those results to the appropriate agency staff for verification that required testing has been completed. If the results are provided directly to the employer, the report should be provided in compliance with regulations implementing the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended.

VA Actions Regarding Vaccines

The executive order and the Task Force's Safety Principles apply to all government agencies, including the VA. But the VA's Veterans Health Administration (VHA) has taken this one step further by requiring all covered personnel in VA clinics (to include CBOC's) to be vaccinated with a current deadline of Oct. 8, 2021², for compliance.

On Aug. 13, 2021, the VA – acting through the VHA – issued an updated VHA Health Directive 1193: COVID-19 Vaccination Program for VHA HCP, which mandates that all healthcare professionals operating in VA healthcare spaces be vaccinated:

It is VHA policy that VA medical facilities will implement a mandatory COVID-19 vaccination program by requiring all VHA HCP to receive a COVID-19 vaccination or obtain an exemption for medical or religious reasons. Compliance with this directive is a requirement. VHA HCP in violation of this directive may face disciplinary action up to and including removal from Federal service.

It is important to note that the VA defines "healthcare personnel" very broadly and includes maintenance, janitorial and clerical service providers operating in VA medical spaces:

Healthcare personnel (HCP) refers to all paid and unpaid persons who work in or travel to VHA locations who have the potential for direct or indirect exposure to patients or infectious materials, including body substances (e.g., blood, tissue, and specific body fluids); contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air. These HCP may include, but are not limited to, … persons (e.g., clerical, dietary, environmental services, laundry, security, maintenance, engineering and facilities management, administrative, billing, and volunteer personnel) not directly involved in patient care but potentially exposed to infectious agents that can be transmitted from HCP and patients.

This broad definition likely covers all lessor employees and subcontractor employees who access the CBOCs or other VA medical facilities.

Takeaways

First, landlords and their service providers (such as maintenance, janitorial and security providers) should understand their requirements. For GSA landlords, the current requirement is one of certification and maintenance of certification records. For the VA, all healthcare personnel must be vaccinated and maintain records of the same.³ Both agencies will require weekly testing of non-vaccinated employees. 

Next, landlords and their service providers should understand their timelines for compliance. As mentioned above, the requirements have been updated and timelines have been shifted several times over the past several months.

Additionally, landlords should consider whether the government's new requirements generate any additional costs. Under the terms of the standard changes clause in both GSA and VA leases, the government is entitled to make changes to the scope of work. But if those changes result in additional costs to the landlord, then the landlord is entitled to an equitable adjustment, which could include both compliance costs and any management or administrative fees.

Finally, and perhaps most importantly, landlords should closely monitor all communications from their government tenants and any public announcements concerning COVID-19 protective measures. Both the GSA and the VA have already made a number of changes to reporting requirements and deadlines, even though the requirements have either just become effective or haven't yet become effective. Expect additional changes to vaccine mandates, certification requirements and timelines for compliance in the coming weeks.

Notes

¹ Many landlords have received extensions for this requirement, but the GSA does not appear to have standardized this extension or published it on any public-facing GSA websites.

² This deadline appears to have been temporarily tolled as well. Multiple landlords have reported notice that this directive is "on pause" for the moment, but no public announcement for further action has been made.

³ It is unclear whether landlords have the option to maintain these records on behalf of employees and subcontractors. While the U.S. Department of Health and Human Services (HHS) advises that "In general, the HIPAA [Health Insurance Portability and Accountability Act] Rules do not apply to employers or employment records," landlords should consider whether maintenance of these records puts any obligations on them under HIPAA or other statutes.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.