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Federal Contractor COVID-19 Vaccine Mandate Clock is Ticking

On September 24, 2021, the Safer Federal Workforce Task Force (the Task Force) issued its initial guidance (the Guidance) for federal contractor COVID-19 safety mandates. The Guidance was issued pursuant to US President Joe Biden’s “Path Out of the Pandemic” Action Plan announced on September 9, 2021.

Most notably, all covered federal contractors, subcontractors and their employees who work on covered contracts (i.e., those awarded or renewed as of November 14, 2021) must be fully vaccinated by December 8, 2021, if their contract so requires. This includes businesses of all sizes and also covers remote workers.


The enforcement mechanism with regard to contractors is largely contractual. President Biden’s executive orders enforcing the “Path Out of the Pandemic” Action Plan require federal agencies to contractually require their contractors to follow all Task Force Guidance. Therefore, once a federal contractor’s contract has been updated to include a requirement for compliance with the Guidance, the Guidance should be viewed as enforceable rules that covered contractors are bound by.

The Guidance issued on September 24, 2021, is comprised of three COVID-19 safety facets:

  1. COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;

  2. Compliance by individuals, including covered contractor employees and visitors, with the Task Force’s Guidance related to masking and physical distancing while in covered contractor workplaces; and

  3. Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.


President Biden’s Executive Order 14042 and the Guidance both require that certain federal contracts must include a clause requiring contractors and subcontractors to abide by the Guidance. While Executive Order 14042 dictates a lengthy explanation of which contracts are covered, the Guidance instructs agencies to construe the term “contracts” broadly. Only contracts that provide services to the federal government are covered; contracts only for the provision of products are not covered.

With regard to timing of implementation:

  • For contracts awarded prior to October 15, 2021, where performance is ongoing, the clause requiring compliance with the Guidance must be incorporated when the contract is renewed or extended.

  • Between October 15, 2021, and November 14, 2021, agencies must include the required clause in the solicitation. For contracts awarded during this period, agencies are encouraged, but not required, to include the clause in contracts awarded during this period, unless the solicitation was issued on or after October 15, 2021.

  • For contracts awarded on or after November 14, 2021, the required clause must be incorporated into the contract’s terms.

If the Guidance is then updated during the ongoing term of a contract, the terms will be deemed to apply to that covered contract for the remainder of its term.

Prime contractors are responsible for ensuring that the required compliance clause is included in its first-tier subcontracts, and first-tier subcontractors are required to flow the clause down to their lower-tier subcontractors.


The Guidance requires that covered contractors ensure that all employees who provide services in connection with a covered contract are fully vaccinated, unless entitled to an accommodation under applicable law, by December 8, 2021. Contractors must require proof of vaccination, such as a copy of the employee’s vaccination card; a self-attestation as to the employee’s vaccination status is not sufficient to meet the Task Force’s requirements.

The Guidance does not contemplate any particular alternatives to the vaccine mandate for employees with exemptions, such as regular testing. As such, the Guidance is silent as to whether the employer would need to pay for tests if this is granted as an accommodation to the employee.

The vaccine mandate applies to contractors’ in-person and remote workers, but only to those who work within the United States. It applies to all covered contractors, regardless of the size of their workforce.

Covered contractors do not need to provide on-site vaccination to employees.


The Guidance requires that all covered contractor employees and visitors must comply with the Centers for Disease Control and Prevention’s (CDC) masking and physical distancing guidelines when in a covered contractor workplace.

At the time of this article, the CDC’s guidance states that in areas with high or substantial community transmission, all individuals (including fully vaccinated people) must wear masks indoors, but fully vaccinated people do not need to physically distance. Individuals who are not fully vaccinated must wear a mask indoors and in certain outdoor settings, regardless of the level of community transmission, and they must remain a distance of at least six feet from others at all times (where feasible).


Covered contractors must designate a person or persons to coordinate implementation of and compliance with the Guidance at covered contractor workplaces. The designated individual must ensure that information on masking and distancing is distributed to covered employees and all other individuals likely to be present at the workplace. The designated individual may also be responsible for ensuring that all employees provide proof of vaccination.

© 2021 McDermott Will & EmeryNational Law Review, Volume XI, Number 270

About this Author

Abigail M. Kagan Employment Attorney McDermott Will & Emery New York, NY

Abigail M. Kagan focuses her practice on employment law, with particular experience in conducting transactional due diligence, defending single-plaintiff, class and collective actions, second-chairing labor negotiations, and drafting personnel policies and other employment documents. She has advised clients on EEO concerns, the gig economy, data privacy, leaves of absence, reductions in force, wage and hour audits, unemployment insurance, short-term disability, restrictive covenants, and NLRA application to non-union members.

Abigail has conducted internal investigations and...

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Michelle S. Strowhiro

Michelle S. Strowhiro is an employment advisor and litigator. She provides trusted counsel to US and international companies on all aspects of employment law compliance. Michelle partners with clients to establish and maintain their strong and lawful employment policies and practices; manage their employee relationships from hire to termination; conduct workplace investigations; administer leaves and other workplace accommodations; and resolve disputes. She provides manager and employee trainings on management and sexual harassment. She regularly prepares and negotiates...