Safer Federal Work Force Task Force Releases Updated FAQ on the Implementation of the Executive Order 14042 COVID-19 Vaccine Mandate

As discussed in our prior alert, most federal contractors will soon see a new Federal Acquisition Regulation (“FAR”) clause 52.223-99 mandating COVID-19 vaccinations and safety protocols included in their future federal solicitations and contracts. In addition, contracting officers have been “strongly encouraged” to seek to bilaterally modify existing contracts to incorporate the clause in existing contracts and orders. The following is a brief overview of the recently updated Frequently Asked Questions (“FAQ”) guidance in implementing and enforcing the COVID-19 vaccination requirements.

Updated Vaccination Requirements and Safety Protocol Guidance

On Oct. 21, the Safer Federal Work Force Task Force released new and updated guidance to Federal Agencies and covered contractors for the implementation of Executive Order 14042.

The revised FAQs cover the COVID-19 vaccination tracking requirements, as well as application of the vaccination requirement to covered employees, which includes:

• Employees who are denied requested accommodations may be given a timeline to “promptly become fully vaccinated.” No guidance is provided as to what is considered “promptly.”
• Based on CDC guidance, the Task Force endorses the following two medical conditions where a covered employee may be excused from the vaccine mandate:
  • Severe allergic reaction (e.g., anaphylaxis) after a previous dose or to a component of the COVID-19 vaccine; and
  • Immediate allergic reaction of any severity to a previous dose or known (diagnosed) allergy to a component of the COVID-19 vaccine.
• Also consistent with CDC guidance, the Task Force allows contractors to implement a process for allowing employees to delay getting vaccinations based on a case-by-case analysis of an employee’s “particular medical circumstances” or “medical necessity.” Appropriate documentation should be gathered in support of any delay decision. For example:
  • While future pregnancy planning does not automatically exempt an employee from complying with the vaccine mandate, a contractor may allow a delay so long as the delay is consistent with the contractor’s process for reviewing delay requests.
  • Employees with a history of myocarditis or pericarditis may delay vaccination until after a myocarditis or pericarditis episode has completely resolved.
  • Covered employees who do not meet the legal definition of “disability” may receive an extension via accommodation in certain limited circumstances (e.g. receiving monoclonal antibodies or convalescent plasma within 90 days).

Contractor policies for delaying vaccination must require that employees become fully vaccinated promptly after clinical considerations no longer recommend delay. If vaccination is delayed, the employees not fully vaccinated must follow applicable masking and physical distancing protocols.

• Covered employees who participated in a clinical trial and received a full series of an “active” COVID-19 vaccine candidate, for which efficacy has been independently confirmed, may be considered fully vaccinated.
• Covered employees who receive heterologous (mix-and-matched vaccines) may be considered fully vaccinated two weeks after receipt of the last dose.
• Covered employees may not delay their compliance with the vaccine requirement due to receipt of other vaccinations.

Clark Hill’s Government Contracts and Regulatory Affairs teams will continue to monitor these future actions and provide updated reports in further client alerts as warranted. Please feel free to contact the authors with any questions or comments.