US Government Issues Vaccine Mandate Guidance for Federal Contractors & Subcontractors

September 27, 2021

The Safer Federal Workforce Task Force issued guidance on September 24 detailing the requirements that covered federal contractors and subcontractors must follow to comply with Executive Order 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” Covered contractors and subcontractors have until December 8 to ensure that covered employees—including those working from home—are fully vaccinated or qualify for a medical or religious accommodation.

The guidance requires covered contractors and subcontractors (hereafter collectively referred to as “covered contractors”) to

  • mandate COVID-19 vaccination for covered contractor employees, including persons working remotely, as well as those working in a covered contractor workplace—regardless of whether they are working on a covered contract;
  • ensure covered employees and visitors comply with masking and social distancing guidance while in a covered workplace; and
  • designate a person or group of persons to coordinate COVID-19 workplace safety and monitor compliance with the guidance.


The guidance does not apply to current contracts. Rather, it will only apply to federal contractors and subcontractors working under

  • new federal contracts or contract-like instruments awarded on or after November 14, 2021 whose contracts contain a clause requiring compliance with the guidance; and
  • existing contracts for which options to extend are exercised on or after October 15, 2021, which modify the contract to include the clause.

The clause will be inserted in new solicitations issued on or after October 15, 2021. Agencies are encouraged to include a clause requiring compliance in contracts awarded between October 15 and November 14, 2021, but that is not required unless the solicitation was issued after October 15, 2021.

The requirements apply to contracts for

  • services, construction, or leasehold interest in property;
  • services covered by the Service Contract Labor Standards (formerly the Service Contracts Act);
  • concessions; and
  • work relating to federal property or lands and related to offering services for federal employees, their dependents, or the general public.

The requirements do not apply to

  • grants
  • contracts or subcontracts below the simplified acquisition threshold (currently $250,000);
  • contracts and subcontracts solely for products;
  • employees who perform work outside of the United States; and
  • contracts or agreements with Indian Tribes.

What Constitutes ‘Contracts and Contract-Like Instruments’?

The guidance adopts the definition of “contract and contract-like instruments” used in the US Department of Labor’s proposed rule on “Increasing the Minimum Wage for Federal Contractors.”[1] There are no exceptions for commercial item contracts or small businesses.

The guidance strongly encourages agencies to incorporate clauses requiring compliance with these rules into contracts not explicitly covered by the above language, including contracts or subcontracts for the manufacturing of products, and contracts under the $250,000 simplified acquisition threshold.

The guidance also strongly encourages covered contractors to incorporate similar vaccination requirements into their non-covered contracts and agreements, such as those relating to the provision of food service, onsite security, and groundskeeping services at covered contractor workplaces.

What Qualifies as a ‘Covered Workplace’?

The definition of a “covered workplace” is broad and includes any worksite controlled by a  contractor or subcontractor where an employee of the covered contractor or subcontractor working on or in connection with a covered contract is likely to be present during the period of performance. Employees performing duties necessary to the performance of a covered contract, but not directly engaged in the specific work called for by the covered contract (e.g., human resources, legal review, billing) qualify as working “on or in connection with” the contract.

According to FAQs accompanying the guidance, this means that if a covered contractor employee is likely to be present in any area of a building, site (indoors or outdoors), facility, or office campus controlled by a covered contractor or subcontractor, the covered contractor or subcontractor must apply these rules to all areas and persons working in those areas unless it can affirmatively determine that there will be no interaction between covered contractor employees and other persons at the site. This means that contractor employees working in a covered contractor workplace are subject to the vaccine mandate regardless of whether they are working on or in connection with a covered contract.


COVID-19 safety protocols and procedures required by the guidance include the following:

Vaccine Mandate

Covered contractors must ensure that all of their employees working at a covered worksite—or working remotely on or in connection with a covered contract—are “fully vaccinated” for COVID-19 (unless legally entitled to an accommodation). This must occur no later than December 8, 2021. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance of a newly awarded covered contract or an exercised option or extended or renewed contract.

A covered employee is “fully vaccinated” two-weeks after their final dose from a one- or two-dose series of COVID-19 vaccines approved for regular and emergency use by the US Food and Drug Administration (FDA) or the World Health Organization (WHO). The guidance does not explicitly address booster shots, but it states that if the Centers for Disease Control (CDC) updates its definition of full vaccination, then the Safer Federal Workforce Task Force will consider updating the definition.

Covered contractors must verify employee vaccination status by collecting documentation from each covered employee. Acceptable documentation includes digital (e.g., photos or PDFs) or hard copies of  the following:

  • Record of immunization from a healthcare provider or pharmacy
  • COVID-19 Vaccination Record Card
  • Medical records documenting the vaccination
  • Immunization records from a public health or state immunization information system
  • Other official documentation detailing the type of vaccine administered, date(s) of administration, and the name of the healthcare professional or clinic site that administered the vaccine

An attestation of vaccination is not an acceptable substitute for documentation of proof of vaccination. In addition, neither proof of prior COVID-19 infection nor a recent antibody test showing the presence of COVID-19 antibodies are acceptable alternatives for proving vaccination status.

Covered contractors may offer limited exemptions to this mandate when required by law, such as when an employee requires reasonable accommodation on the basis of disability (or medical condition) or sincerely held religious belief.

The FAQs attached to the guidance also confirm that the vaccination mandate and other requirements in the guidance will apply even in states that have laws prohibiting certain actions required by the guidance, such as mandating vaccines.

Masking & Social Distancing

Covered contractors must ensure that all individuals, including covered employees and visitors, comply with published CDC guidance for masking and social distancing at covered contractor workplaces. If the covered contractor workplace also falls under CDC guidance for specific worksites such as schools, healthcare facilities, transportation, and correctional and detention facilities, the contractor must also comply with those requirements.

The guidance specifically notes that in areas of high or substantial community transmission (as defined by the CDC), all persons—including those fully vaccinated—must wear masks indoors. Fully vaccinated persons in low or moderate community transmission areas (as defined by the CDC) do not need to wear masks indoors. Fully vaccinated persons are also exempt from the requirement to socially distance, regardless of the level of community transmission.

However, people in any work setting who are not fully vaccinated—“to the extent practicable”—should maintain six feet of distance from others “at all times, including in offices, conference rooms and all other communal and work spaces.” This requirement would apply to, for example, covered contractor employees who have an approved accommodation to the vaccination mandate.

Covered contractors must ensure that all persons required to wear a mask do the following:

  • Wear an appropriate mask consistently and correctly (covering mouth and nose)
  • Wear appropriate masks in common areas or shared work spaces (including open floorplan office spaces, cubicles, and conference rooms)
  • For individuals who are not fully vaccinated, wear masks in crowded outdoor settings or during outdoor activities that involve sustained close contact with other people who are not fully vaccinated

The only acceptable exceptions to mask and social distancing requirements are those available for fully vaccinated individuals and those endorsed by CDC guidelines, such as when an individual is alone in an office with floor-to-ceiling walls and a closed door, or for limited periods of eating and drinking. Covered contractors may also provide exceptions for employees engaged in high-intensity activities that make breathing difficult, activities where a mask creates a risk to workplace safety (applying workplace risk assessment standards used by the Occupational Safety and Health Administration), and activities that may cause a mask to get wet. Such exceptions must be approved in writing by the covered contractor’s COVID-19 Workplace Safety Coordinator.

As with the vaccination mandate, covered contractors may have to provide accommodation, if possible, to covered contractor employees unable to wear a mask because of a disability or sincerely held religious belief or practice.

Designation of COVID-19 Workplace Safety Coordinator

Covered contractors must designate a person or persons to coordinate implementation and compliance with this guidance at covered contractor workplaces, including compliance with vaccination documentation requirements.

The designated individual (or individuals) also must ensure that information related to the guidance and safety standards is communicated to all covered employees in a readily understandable manner. The individual(s) must also ensure that appropriate signage is displayed informing visitors or other individuals at a covered contractor workplace about applicable safety requirements.


The scope of the guidance is broad and will cover a large segment of the workforce. Employers should review existing or pending federal contracts or subcontracts to determine if the guidance will apply to them and, if so, at what point it will apply. Employers that are covered contractors will further need to evaluate their worksites to determine which sites and workers these guidelines will cover. Given the extraordinary scope of the rules, covered contractors may consider applying these rules to their entire workforce for ease of administration.

Covered contractors that have yet to impose vaccine mandates will now have to develop the programs and policies needed to implement them, including systems for evaluating documentation and handling employee requests for accommodation. Covered contractors that have already implemented vaccine mandates may have to collect additional proof of employee vaccination if they did not originally require documentation that complies with the new guidelines.

While the guidance is fairly detailed, there are a number of open questions that employers will need answered, including the following:

  • What qualifies as “likely to be present” at a worksite? Because coverage of a building, facility, or campus could hinge on the meaning of that phrase, employers will no doubt want more specific guidance on what meets that standard. Would a location qualify if a covered contractor employee may visit an area once a year? Would a location qualify if a covered contractor employee has ever visited a site and might in the future?
  • How will agencies that are “strongly encouraged” to include similar requirements in non-covered contracts, including contracts for the manufacture of products, seek to do that? Will these agencies use the bargaining power of the federal government to insist on including such clauses in contracts going forward? What happens if a contractor refuses to accept a contract modification that includes these requirements?
  • How will this guidance be enforced? The Executive Order and guidance are both silent on the sanctions the federal government may apply if a contractor fails to comply with the terms of the order. The guidance also does not say how the Safer Federal Workforce Task Force will monitor compliance, apart from having contractors designate an internal compliance manager.


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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

New York
David McManus
Daniel A. Kadish

Orange County
Daryl S. Landy

A. Klair Fitzpatrick

Washington, DC
Sharon P. Masling
Kaiser H. Chowdhry
Alana F. Genderson

[1] 86 Fed. Reg. 38,3816 (July 22, 2021).