Updates
Vaccine Mandate Halted Nationwide
12/7/2021 Update: A judge has issued a nationwide injunction on the COVID-19 vaccine mandate for federal contractors. Based upon the preliminary injunction, GSA posted the following update on their website.
“Effective immediately, the Federal Government is prohibited from enforcing a vaccine mandate for contractors and subcontractors in all states and territories of the United States. GSA contracting officers shall not take any action to enforce the vaccination requirements in FAR clause 52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors in any contract or contract-like instrument.
What does it mean to “not enforce” the clause?
• Contractor and subcontractor employees do not have to meet the vaccination mandate in the Safer Federal Workforce Task Force Guidance.
• Contractors will continue to be eligible for new contracts, new orders, options, and extensions even if they have not agreed to follow FAR clause 52.223-99.
Additional updates will be posted once more information is available.”
GSA Schedule Contract holders who did not accept Refresh 8 mass modification A837 were removed from GSA’s eLibrary and Advantage websites last month. Following the court injunction, it appears as though these contractors are now visible again on eLibrary and Advantage.
Vaccine Mandate Blocked in 3 States
11/30/2021 Update: According to Government Executive, a federal judge has temporarily blocked the COVID-19 vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio and Tennessee. Read the full article and learn more here.
Vaccination Deadline Extended
11/4/2021 Update: The deadline for federal contractors subject to COVID-19 Safety Protocols, FAR clause 52.223-99, has been extended. As of right now, GSA Schedule Contractors are still required to accept mass modification A837 by November 14, 2021. However, employees subject to the vaccine requirement now have until January 4, 2022 to receive their final COVID-19 vaccination, whether that be their second Pfizer or Moderna shot, or their first Johnson & Johnson shot.
The administration is extending the vaccination deadline for federal contractors in order to align with the deadline set by the Occupational Safety and Health Administration (OSHA) and Centers for Medicare and Medicaid Services (CMS). Read the fact sheet here to learn more about the extension. The fact sheet also provides additional details regarding OSHA’s vaccine/testing requirement for employers with 100 or more employees.
Industry Session Recording Released
10/25/2021 Update: The recording of GSA’s Information Session has been released and is now availble here: GSA Webinar Recording.
If you hold a GSA Multiple Award Schedule (MAS) Contract — or any other federal contract/subcontract subject to FAR clause 52.223-99 — you may be overwhelmed and confused by how COVID-19 safety protocols impact your company and who is required to get vaccinated. We’ve put together the overview below to help you make sense of the new requirements, including when they apply and who they apply to. In addition to attending GSA’s virtual industry session, FEDSched has thoroughly reviewed the Executive Order, class deviation, FAQ’s, and Safer Federal Workforce Guidance in order to provide you with this synopsis.
What We Cover:
- Important Notes & Dates
- What is FAR Clause 52.223-99?
- What Does the Safer Federal Workforce Guidance Require?
- Who is Required to be Vaccinated?
- Who is Not Required to be Vaccinated?
- How Do Employers Verify Employee Vaccination?
- What Happens if You Do Not Accept the Mass Mod?
- Meeting Federal Customer Needs
- Important Terms
- Resources
Important Notes & Dates
GSA Refresh 8 was issued on October 8, 2021 and impacts all GSA MAS Contract holders. Refresh 8 implements the Executive Order on COVID-19 Safety Protocols for Federal Contractors across all GSA MAS Contracts (also referred to as GSA Schedule Contracts), regardless of whether they are product or service-based.
- GSA began issuing the Refresh 8 mass modification (mod), A837, on October 8th to all existing GSA MAS Contract holders.
- GSA’s system sends out approximately 3,000 mass modification emails a day. All GSA MAS Contract holders should have received an email from GSA regarding mass mod A837 this week.
- Acceptance of mass mod A837 by November 14, 2021 is mandatory.
- Mass mod A837 incorporates FAR clause 52.223-99, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors, into all GSA MAS Contracts.
- Companies have until
December 8, 2021January 4, 2022 to comply with the newly incorporated COVID-19 Safety Protocols.
What is FAR Clause 52.223-99?
FAR Clause 52.223-99 requires that you:
- “Comply with all guidance, including guidance conveyed through the Frequently Asked Questions, as amended during the performance of this contract, for contractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance).” See the current guidance here; and
- Flow down this clause to subcontracts at any tier that are:
What Does the Safer Federal Workforce Guidance Require?
GSA Schedule Contract holders, and any company that holds a federal contract with FAR clause 52.223-99 incorporated, must follow guidance issued by the Safer Federal Workforce. It is important to note, this guidance can change and companies should follow any updates.
The current guidance consists of the three main COVID-19 safety protocols below:
- Vaccines: Employers must ensure that all applicable employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. (See page 5-6 of the Guidance)
- Masking/Social Distancing: Employers must ensure that, at work locations with employees who work on or in connection with your GSA Schedule Contract or any other federal contract that includes FAR clause 52.223-99, all individuals (including visitors) comply with published CDC guidance for masking and physical distancing. (See page 6-7 of the Guidance)
- Designated COVID-19 Safety Coordinator: Employers must designate a person or group to “coordinate implementation of and compliance with” the Safer Federal Workforce Guidance. (See page 8 of the Guidance)
Who is Required to be Vaccinated?
If your company holds a GSA MAS Contract or any other federal contract that includes FAR clause 52.223-99, or you are a subcontractor who is subject to 52.223-99, you are required to obtain proof of vaccination from:
- Any employee, regardless of their work location (agency site, office, home, or outdoors), who is working on or in connection with a federal contract that includes FAR clause 52.223-99. This includes any Task Orders and/or BPAs awarded under your GSA Multiple Award Schedule Contract.
- GSA clarified that someone working in connection with a federal contract is considered anybody whose work is necessary for the performance of the contract. This includes your overhead pool of employees, in other words, human resources, finance, quality control, training, legal etc..
- Any employee who may come into contact at a work location with an employee who is working on or in connection with your GSA MAS Contract or any other federal contract that includes FAR clause 52.223-99.
Who is Not Required to be Vaccinated?
If your company holds a GSA MAS Contract or any other federal contract that includes FAR clause 52.223-99, or you are a subcontractor who is subject to 52.223-99, you are not required to obtain proof of vaccination from:
- Employees who do not work on or in connection with a GSA MAS Contract or any other federal contract that includes FAR clause 52.223-99 AND do not work at a location where they may come into contact with an employee who works on or in connection with a GSA MAS Contract or any other federal contract that includes FAR clause 52.223-99.
- Employees who work from home AND do not work on or in connection with a GSA MAS Contract or any other federal contract that includes FAR clause 52.223-99.
- Employees who are not vaccinated due to a disability or religious belief and are legally entitled to an accommodation. Employers should review these requests as they would review any request for special accommodation, and determine what accommodation, if any, must be offered.
- Employees who only perform work outside of the United States and its outlying areas.
COVID-19 Vaccine Requirement Infograph
Below is an explanation of the four different scenarios presented in the infograph above. For the purposes of the explanations below, “federal contract worker” means any employee working on or in connection with a GSA Multiple Award Schedule Contract or any other federal contract or subcontract subject to FAR clause 52.223-99. “In connection” includes employees considered overhead personnel, such as employees working in accounting or human resources.
- In the first scenario, a federal contract worker is working in the same building as an employee who provides support solely for the company’s commercial division. In this scenario, because the federal contract worker could feasibly come into contact with the employee working within the commercial division, even if the contact is limited to crossing paths in the hallway or sharing an elevator, all employees are required to be vaccinated.
- In the second scenario, federal contract workers and commercial division employees work in separate buildings and do not have any contact with each other. In this case, employees of the commercial division are not required to be vaccinated.
- In the third scenario, a federal contract worker does not go into the office at all; the person works 100% from home. Due to the connection to a federal contract, this person is required to be vaccinated, regardless of their work location.
- In the fourth scenario, an employee provides support solely for the company’s commercial division and works 100% from home. This person is not required to be vaccinated.
How Do Employers Verify Employee Vaccination?
Employees that are required to be vaccinated must show or provide their employer a copy (digital copies are acceptable) of the:
- Record of immunization from a health care provider or pharmacy; or
- COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020); or
- Medical records documenting the vaccination; or
- Immunization records from a public health or State immunization information system; or
- Other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine.
GSA held a virtual industry session this week to discuss the new COVID-19 safety protocol requirements and address industry questions. Jeffrey Koses, GSA’s Senior Procurement Executive, Office of Acquisition Policy, acknowledged industry concerns. Koses explained, in an attempt to reduce the administrative burden, GSA is not asking companies to make any certifications or submit any documentation regarding the COVID-19 safety protocols. Once a company accepts mass mod A837, GSA will assume the contractor is in compliance with FAR 52.223-99, unless they have reason to believe otherwise. GSA is also recommending that Contracting Officers have some flexibility with contractors who are showing a good faith effort to comply with the new protocols.
What Happens if You Do Not Accept the Mass Mod?
Keep in mind, this is a federal order that is not limited to GSA contracts. The vaccine requirements implemented across the GSA Schedule Contracts are also required for most other federal contracts and are strongly encouraged even when not required.
Even if your company decides to forego all federal contract work, OSHA will soon issue an emergency rule that requires all companies with 100 or more employees to ensure employees are fully vaccinated or tested for COVID-19 on a weekly basis. During this week’s industry session, GSA noted it will be more cost effective for companies to implement the FAR mandated COVID-19 safety protocols as opposed to OSHA’s emergency rule that allows for a weekly testing alternative.
That said, if your company decides to not accept Refresh 8 mass mod A837 because you cannot or will not comply with federal COVID-19 safety protocols:
- Your contract information will be taken down from GSA websites like GSA eLibrary and Advantage; you will also lose access to GSA eBuy.
- You will not be eligible for any future orders.
- You will not be able to renew or extend your contract.
Meeting Federal Customer Needs
Companies should understand their federal customers are required to follow the new Federal Acquisition Regulations related to COVID-19 safety protocols. GSA anticipates federal agencies will turn to GSA Contract vehicles, like the GSA Multiple Award Schedule, to ensure compliance. Since GSA is incorporating the new FAR clause on COVID-19 Safety Protocols into all GSA MAS Contracts through the mass modification process, agencies are not required to modify the contract/Task Order themselves. Government buyers can also use GSA’s COVID Safety Protocols Dashboard and GSA Contracts Online webpage to find out if a company has incorporated the new COVID-19 related FAR clause into their contract.
Important Terms
If you read the official guidance, you’ll see the terms below used. We understand looking up multiple definitions to decipher the definition of one term can be frustrating. For that reason, this overview of the new requirements avoids using these new terms; however, it is important to be aware of them. The following definitions have been pulled directly from the Safer Federal Workforce Task Force Guidance for Federal Contractors, which was issued on September 24, 2021.
- Contractor or subcontractor workplace location – means a location where covered contract employees work, including a covered contractor workplace or Federal workplace.
- Covered contract – means any contract or contract-like instrument that includes the clause described in Section 2(a) of the order.
- Covered contractor – means a prime contractor or subcontractor at any tier who is party to a covered contract.
- Covered contractor employee – means any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.
- Covered contractor workplace – means a location controlled by a covered contractor at which any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract. A covered contractor workplace does not include a covered contractor employee’s residence.
- Federal workplace – means any place, site, installation, building, room, or facility in which any Federal executive department or agency conducts official business, or is within an executive department or agency’s jurisdiction, custody, or control.
- Fully vaccinated – People are considered fully vaccinated for COVID-19 two weeks after they have received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine. There is currently no post-vaccination time limit on fully vaccinated status; should such a limit be determined by the Centers for Disease Control and Prevention, that limit will be considered by the Task Force and OMB for possible updating of this Guidance.
Resources
- Executive Order (E.O.) on Ensuring Adequate COVID Safety Protocols for Federal Contractors
- Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies
- The General Services Administration’s COVID-19 webpage
- GSA Industry Session Slides: GSA Implementation of E.O. on Ensuring Adequate COVID Safety Protocols for Federal Contractors
- GSA Industry Session Recording: GSA Implementation of E.O. on Ensuring Adequate COVID Safety Protocols for Federal Contractors
- FAR Class Deviation – Implementation of E.O. 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors
- Safer Federal Workforce Task Force Federal Contractors Section
Don’t Risk Missing Updates
GSA is the process of drafting additional guidance for authorized dealers under the GSA Schedule. Stay tuned for more information.
