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GOVERNMENT CONTRACTOR
COMPLIANCE & REGULATORY
UPDATE


FAR COUNCIL ISSUES CONTRACTOR VACCINATION CONTRACT CLAUSE AND GUIDANCE

By Guy Brenner and Megan Childs on October 4, 2021 Posted in Coronavirus,
Federal Contractors

As previously reported, the Biden Administration issued Executive Order 14042
(“the Order”) last month.  The Order requires, in part, that the Federal
Acquisition Regulatory Council (“the FAR Council”) amend the Federal Acquisition
Regulation (“FAR”) to include a clause specifying that contractors and
subcontractors shall “comply with all guidance for contractor or subcontractor
workplace locations published by the Safer Federal Workforce Task Force.”  The
Task Force issued its COVID-19 Workplace Safety: Guidance for Federal
Contractors and Subcontractors (the “Guidance”) on September 24, 2021, setting
forth vaccine mandates, as well as masking, social distancing, and other
requirements.  The Task Force then supplemented its Guidance with published FAQs
on September 30, 2021.  Our summaries of these developments are available here
and here.

The FAR Council has now issued the contract clause that, when included in new
contracts and contract-like instruments, will impose the Guidance’s requirements
on contractors and subcontractors, as well as a memorandum providing guidance to
agencies regarding its implementation.  The new clause and memorandum to
agencies are available here.  They provide additional insights on the recent
federal mandate.

As we previously reported, despite the fact the Order limits the contracts
subject to the Guidance, the Guidance strongly encourages agencies to include
the clause in contracts and contract-like instruments beyond those expressly
covered by the Order.  The FAR Council’s memorandum echoes this sentiment,
noting it is part of an effort “[t]o maximize the goal of getting more people
vaccinated and decrease the spread of COVID-19.”  To that end, agencies are
advised that the clause should be broadly applied, with only two exceptions: (1)
“contracts and subcontracts with Indian Tribes under the Indian
Self-Determination and Education Assistance Act;” and (2) “solicitations and
contracts if performance is outside the United States or its outlying areas.”

The FAR Council also provides information regarding the applicability and
effective dates of the clause as follows:

 * “new contracts awarded on or after November 14 from solicitations issued
   before October 15 (this includes new orders awarded on or after November 14
   from solicitations issued before October 15 under existing
   indefinite-delivery contracts);
 * new solicitations issued on or after October 15 and contracts awarded
   pursuant to those solicitations (this includes new solicitations issued on or
   after October 15 for orders awarded pursuant to those solicitations under
   existing indefinite-delivery contracts);
 * extensions or renewals of existing contracts and orders awarded on or after
   October 15, 2021; and
 * options on existing contracts and orders exercised on or after October 15,
   2021.”

The actual clause published by the FAR Council is also informative.  It provides
that contractors with contracts containing the clause need to comply not only
with the Guidance itself, but also “shall comply with all guidance, including
guidance conveyed through Frequently Asked Questions, as amended during the
performance of this contract, for contractor or subcontractor workplace
locations published by the Safer Federal Workforce Task Force (Task Force
Guidance) at https:/www.saferfederalworkforce.gov/contractors/.” (emphasis
added).

We will continue to report on new developments regarding the Order and Guidance.

*   *   *

Subscribe to Proskauer’s Law and the Workplace blog to stay current on the
latest Biden administration developments impacting your business. Proskauer’s
cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on
supporting and addressing client concerns. Visit our Coronavirus Resource
Center for guidance on risk management measures, practical steps businesses can
take and resources to help manage ongoing operations.

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ADDITIONAL CONTRACTOR VACCINATION MANDATE GUIDANCE ISSUED

By Guy Brenner and Megan Childs on October 1, 2021 Posted in Coronavirus,
Federal Contractors

The Safer Federal Workforce Task Force has released a set of frequently asked
questions and answers (“FAQs”) regarding the Guidance for Federal Contractors
and Subcontractors (the “Guidance”) it issued last week.  Our comprehensive
summary of the Guidance is available here.

The new FAQs largely repackage the information provided in the Guidance.
 However, they do provide additional detail and information regarding the
Guidance, which includes the following.

 * Interplay with the Upcoming OSHA Emergency Temporary Standard. As previously
   reported, employers with 100 or more employees will be subject to a
   soon-to-be-issued emergency temporary standard that will include a testing
   option for those who choose not to vaccinate.  The new FAQs make clear that
   covered contractors and subcontractors (“Contractors”) must comply with the
   Guidelines – which do not contain a testing option –“regardless of whether
   they are subject to other workplace safety standards.”
 * Interplay with State and Local Laws. Many contractors have wondered how they
   can comply with the Guidance in jurisdictions that prohibit vaccine mandates
   or take adverse action against employees who refuse to vaccinate.  The new
   FAQs directly address this quandary, making clear that to the federal
   government there is an easy answer:  covered Contractors must comply with the
   Guidelines – the Guidelines’ “requirements are promulgated pursuant to
   Federal law and supersede any contrary State or local law or ordinance.
   Additionally, nothing in the Task Force Guidance shall excuse noncompliance
   with any applicable State law or municipal ordinance establishing more
   protective workplace safety protocols than those established under the Task
   Force Guidance.”
 * Monitoring Subcontractor Compliance. Covered prime contractors must ensure
   the requirements set forth in the Guidance are incorporated into their
   first-tier subcontracts and subcontractors are thereafter required to fully
   comply (including by flowing down the clause to lower-tier subcontractors).
    The new FAQs provide that prime contractors do not have an affirmative
   obligation to monitor subcontractor compliance, but rather may “assume the
   subcontractor is complying with the [Guidance … unless] the prime contractor
   has credible evidence otherwise.”
 * Onsite Vaccinations. The FAQs make clear contractors do not have to provide
   onsite vaccination opportunities for their employees.

Even with the new FAQs, we expect additional guidance to be issued and for the
Guidance itself to be updated in the coming weeks.  We will continue to monitor
and report on any developments here.

In the meantime, contractors should assess the Guidelines, determine when and
how they may apply to their businesses, consider what the impact of the
Guidelines will mean for their businesses, and begin planning for implementation
now.  From our numerous conversations with contractors since the Guidelines were
issued, the new requirements present a host of practical challenges for
contractors that require careful assessment of the complex and ever-changing
legal landscape to determine how best to meet those challenges while also
ensuring compliance.

*   *   *

Subscribe to Proskauer’s Law and the Workplace blog to stay current on the
latest Biden administration developments impacting your business. Proskauer’s
cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on
supporting and addressing client concerns. Visit our Coronavirus Resource
Center for guidance on risk management measures, practical steps businesses can
take and resources to help manage ongoing operations.

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POTENTIAL GOVERNMENT SHUTDOWN – WHAT EVERY FEDERAL CONTRACTOR NEEDS TO KNOW

By Guy Brenner and Allan Bloom on September 27, 2021 Posted in Federal
Contractors

We appear to be on the precipice of a federal government shutdown.  Absent a
political compromise, the federal government’s funding will run out on September
30, 2021, and the White House has instructed federal agencies to prepare for a
possible shutdown.  During previous government shutdowns, government agencies
and departments issued stop-work orders, grinding work on government projects
and contracts to a halt.  Contractors were then faced with the difficult task of
remaining in compliance with their obligations to their employees while work and
funding for those contracts has ceased.

With a possible shutdown on the horizon, contractors are beginning to consider
how to handle these complex employment issues.  Although the discussion below is
not comprehensive, it discusses many of the significant employment-related
issues a shutdown presents for contractors.

Wage and Hour Considerations

During a shutdown, non-essential government employees are typically furloughed
and the federal government does not have to be concerned with wage and hour
legal issues.  Contractors, on the other hand, must remain mindful of
obligations under both federal and state wage and hour laws.  For example, a
contractor that begins a furlough mid-week may consider not paying its employees
for the days during that week the employees are on furlough.  However, doing so
for employees exempt from overtime under federal and state laws could place
their exempt status in jeopardy.

Generally, to be exempt from overtime under the federal Fair Labor Standards Act
(“FLSA”), an employee must be paid on a salary basis of at least $684 per week,
regardless of the amount of work performed.  Accordingly, while an employer can
withhold payment for any full week in which the employee does not work, it
cannot do so for any part of a week in which the employee does not work due to a
furlough without jeopardizing exempt status.

During previous shutdowns, some contractors mitigated various wage issues by
requiring exempt employees to use vacation pay or paid time off (“PTO”) to cover
compensation for non-working days during partial furlough weeks.  Although this
practice complies with the FLSA’s exemption requirements, contractors must still
ensure that they do not run afoul of state wage and hour laws.  For example,
some states require employers to comply with their own published leave
policies.  Therefore, in such states, employers should review their policies and
applicable laws before mandating the use of vacation time or PTO.

Contractors should also instruct employees not to perform any work while on
furlough.  If an exempt employee performs work during the week (such as checking
and responding to emails), he or she must be paid his or her salary for the
entire week.  If a non-exempt employee performs work, he or she must be paid for
all work performed.  For this reason, employers should clearly communicate to
supervisors and employees that work may not be performed while they are on
furlough.  During past shutdowns, some contractors confiscated company-issued
smartphones and computing devices to ensure no work was performed.

Another approach contractors have considered during previous shutdowns is
requiring exempt employees to work a reduced workweek.  Contractors considering
this approach must be mindful of the salary basis implications.  That being
said, in limited circumstances it may be permissible to adopt a reduced
work-hours program during a period of economic hardship.  The Department of
Labor has stated in various opinion letters that “a fixed reduction in salary
effective during a period when a company operates a shortened workweek due to
economic conditions would be a bona fide reduction not designed to circumvent
the salary basis payment. Therefore the exemption would remain in effect as long
as the employee receives the minimum salary required by the regulations and
meets all the other requirements for the exemption.”  Opinion Letter
FLSA2009-18.

Before instituting such a change, however, employers must consider a number of
issues, including:  (1) any contractual obligations to employees; (2) state and
local notice requirements for changes in compensation; (3) requirements for
foreign workers on work authorizations (discussed below) and (4) compliance with
other requirements for overtime exemptions (including state requirements).

The WARN Act

The looming government shutdown also brings with it the prospect of furloughing
large numbers of employees.  These potential furloughs may implicate the federal
Worker Adjustment and Retraining Notification (“WARN”) Act and its state
equivalents.  The WARN Act requires, with some exceptions, that employers
provide 60 days’ notice to employees affected by a “plant closing” or “mass
layoff.”  However, depending on what a government contractor plans to do in
response to the shutdown, the WARN Act may not apply.

Historically, some contractors have furloughed workers on suspended projects
until they are resumed.  The WARN Act only applies if there is an “employment
loss,” which is defined as: (1) an employment termination; (2) a layoff
exceeding six months; or (3) a reduction in an employee’s hours of work of more
than 50 percent in each month of a six-month period.  Because it is not
anticipated that a government shutdown will exceed six months, for most
government contractors the WARN Act will not apply.  In the unlikely event that
the government shutdown continues for more than four months, contractors will
have to consider whether to provide the notices required under the WARN Act.

However, even if the WARN Act does not apply to a government contractor’s
furlough program, contractors should be aware that analogous state laws may be
triggered by their furloughs.

E-Verify

Government contractors are required to utilize the Internet-based employment
verification system called E-Verify to confirm the employment eligibility of
their new hires and current employees.  The website, which is administered by
the Department of Homeland Security, has historically been unavailable during
government shutdowns.

If this is the case again, government contractors should complete I-9 paperwork
in an accurate and timely fashion while E-Verify is unavailable.  In addition,
if an employee has received a “Tentative Non-Confirmation” notice from E-Verify,
he or she likely will not be able to resolve the issue during the shutdown.  If
that is the case, the deadline for responding to the Tentative Non-Confirmation
will likely be extended for the duration of the shutdown.  During this period,
the employer should not take any adverse action against the employee as a result
of the notice.

Benefits Issues

If a government shutdown lasts longer than anticipated, there may also be
certain benefits implications for furloughed employees.  First, reduction in
employees’ hours may cause some employees to lose coverage under the terms of
the employer’s COBRA-covered health plans.  In this case, employers are required
to send out qualifying event notices to impacted employees.  The employees and
dependents must be offered the ability to continue coverage under these plans
during the period of the furlough (up to the maximum COBRA continuation period)
at their own expense.  If a furloughed employee is later terminated, the
termination generally will not be considered a second qualifying event that
would entitle the employee to an extension of the COBRA continuation period.

Unemployment Benefits

Government contractors should also be aware that furloughing their employees may
make the employee eligible for unemployment benefits.  Contractors should
consult their state laws to determine the impact of furloughs on unemployment
benefits.

Conclusion

A government shutdown will require many contractors to make difficult choices.
 If there is a shutdown, contractors should consult with employment counsel
familiar with government contracting requirements to ensure that short-term
reactions to the shutdown do not result in costly legal liabilities.

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VACCINATION GUIDANCE ISSUED FOR FEDERAL CONTRACTORS AND SUBCONTRACTORS

By Guy Brenner and Megan Childs on September 27, 2021 Posted in Coronavirus,
Federal Contractors

On September 24, 2021, the Safer Federal Workforce Task Force (the “Task Force”)
issued Guidance for Federal Contractors and Subcontractors (the “Guidance”),
advising covered federal contractors and subcontractors of their new COVID-19
safety requirements.  The Guidance, which still must be approved by the Office
of Management and Budget, fleshes out the requirements set forth in Executive
Order 14042 (the “Executive Order”) which announced that certain contractors
with new contract or contract-like instruments (and their subcontractors) will
be subject to COVID-19 safety requirements.  Our discussion of the Executive
Order is available here.

The Guidance provides that covered federal contractors and subcontractors
(“Contractors”) will be required to (1) impose vaccination requirements on
certain employees; (2) comply with masking and physical distancing requirements,
and (3) designate person(s) to coordinate COVID-19 workplace safety efforts.

The Guidance is subject to change based on new Centers for Disease Control and
Prevention (“CDC”) guidance “and as warranted by the circumstances of the
pandemic and public health conditions.”  When such changes are made, they will
automatically be imposed on covered Contractors.

Some key details from the Guidance are provided below:

Which Contractors Are Subject to the New Requirements?  Covered Contractors are
those who enter into a new contract or contract-like instrument that contains a
clause incorporating the Guidance, which is to be developed by October 8, 2021
by the Federal Acquisition Regulatory Council (“FAR Council”) prior to a formal
rulemaking.  The new requirements must be incorporated into covered[1] contracts
awarded prior to October 15, 2021 whenever an option is exercised or an
extension is made.  The new clause will have to be incorporated into covered
contracts awarded on or after November 14, 2021; for covered contracts awarded
between October 15 and November 14, 2021, agencies are encouraged to include the
clause but are not required to do so except where the solicitation for the
contract was issued on or after October 15, 2021.  Prime contractors must also
include flow-down provisions incorporating the clause into subcontracts, which
must flow the clause down to all lower-tier subcontractors.

Small businesses will not be exempted from the requirement.  As reflected in the
Task Force’s previously issued guidance, reported on here, even though the
Executive Order expressly excludes specific types of contracts, the Guidance
“strongly encourages” agencies to incorporate the Guidance into contracts not
covered by the Executive Order.  As the Guidance states:

“Consistent with applicable law, agencies are strongly encouraged to incorporate
a clause requiring compliance with this Guidance into contracts that are not
covered or directly addressed by the order because the contract is under the
Simplified Acquisition Threshold … or is a contract or subcontract for the
manufacturing of products. Agencies are also strongly encouraged to incorporate
a clause requiring compliance with this Guidance into existing contracts and
contract-like instruments prior to the date upon which the order requires
inclusion of the clause.”

What Are The Requirements?

 * Vaccinations.
   * Required employee vaccinations: All covered employees are required to be
     vaccinated for COVID-19, except where an accommodation is required due to a
     disability or the agency has “an urgent, mission-critical need” to have an
     employee begin work on a covered contract at a covered workplace prior to
     becoming fully vaccinated.  There is no exception for employees who have
     had a prior COVID-19 infection.  There is no testing requirement in the
     Guidance for employees who receive an exception.
   * Deadline for vaccination compliance: Non-exempted employees must be fully
     vaccinated by December 8, 2021, or “by the first day of the period of
     performance on a newly awarded covered contract, and by the first day of
     the period of performance on an exercised option or extended or renewed
     contract when the clause has been incorporated into the covered contract.” 
     Consistent with guidance from the CDC, individuals are fully vaccinated if
     two weeks have passed since they “received the second dose in a two-dose
     series, or two weeks after they have received a single-dose vaccine.”  The
     Guidance discusses which vaccines are acceptable.  It also notes that
     “[t]here is currently no post-vaccination time limit on fully vaccinated
     status; should such a limit be determined by the [CDC], that limit will be
     considered by the Task Force and OMB for possible updating of this
     Guidance.”
   * Verification of compliance: Contractors must review employee vaccination
     documentation to confirm their employees meet the vaccination requirement. 
     Acceptable forms of documentation are “a copy of the record of immunization
     from a health care provider or pharmacy, a copy of the COVID-19 Vaccination
     Record Card (CDC Form MLS-319813_r, published on September 3, 2020), a copy
     of medical records documenting the vaccination, a copy of immunization
     records from a public health or State immunization information system, or a
     copy of any 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.”  Helpfully,
     the Guidance expressly provides that a “digital copy of such records,
     including, for example, a digital photograph, scanned image, or PDF of such
     a record” is acceptable.  A recent antibody test is not sufficient proof of
     vaccination status.
   * Employees exempted from the vaccination requirement: In addition to the
     “urgent, mission-critical” exception noted above (which can only have a
     temporary duration), the Guidance provides that Contractors “may be
     required to provide an accommodation to covered contractor employees who
     communicate to the covered contractor that they are not vaccinated against
     COVID-19 because of a disability (which would include medical conditions)
     or because of a sincerely held religious belief, practice, or observance.
      A covered contractor should review and consider what, if any,
     accommodation it must offer.  Requests for ‘medical accommodation’ or
     ‘medical exceptions’ should be treated as requests for a disability
     accommodation.”  (emphases added).  The Guidance provides no further
     information regarding how such accommodation requests should be assessed,
     through a prior Task Force publication suggested further guidance on this
     subject will be forthcoming.
 * Masking and Social Distancing. Although coverage of the Executive Order
   focused on the likely vaccine requirement, the Guidance also lays out masking
   and social distancing requirements.  In addition to following CDC guidelines,
   covered Contractors will be required to adhere to the following protocols:
   * Masks are required: (1) indoors in areas of high and substantial community
     transmission for all employees (regardless of vaccination status); (2) for
     non-fully vaccinated employees indoors in areas of moderate and low
     transmission; and (3) for non-fully vaccinated employees in “crowded
     outdoor settings or during outdoor activities that involve sustained close
     contact with other people who are not fully vaccinated.”  Where masks are
     required, they must be worn “consistently and correctly.”
     * Masks are not required: for fully vaccinated employees indoors in areas
       of moderate and low transmission and in outdoor spaces. Contractors can
       also provide exceptions from masking requirements where consistent with
       CDC guidelines (such as where the employee is alone in an enclosed
       personal office or for a limited time while eating or drinking).  Other
       exceptions based on the activities the employee engages in or other
       factors may also be available, but must be determined by a workplace risk
       assessment and approved in writing by a “duly authorized representative”
       of the Contractor.
     * The Guidance recognizes exceptions to masking requirements may be
       required due to disability or religious accommodations, but notes
       providing accommodations may not always be required: “A covered
       contractor should review [accommodation requests] and consider what, if
       any, accommodation it must offer.”
     * Contractors must refer to the CDC COVID-19 Data Tracker County View
       website to determine the level of community transmission “in all areas
       where they have a covered contractor workplace at least weekly to
       determine proper workplace safety protocols.” When the level increases
       from low/moderate transmission to substantial or high, the Contractor
       “should put in place more protective safety protocols,” but when the
       level is reduced, the Contractor cannot reduce the level of safety
       protocols unless and until the transmission rate remains at the lower
       level for at least two consecutive weeks.
   * Social distancing of six-feet or more is required “[t]o the extent
     practicable” for non-fully vaccinated employees, “including in offices,
     conference rooms, and all other communal and work spaces.”
     * Social distancing is not required for fully vaccinated employees, and for
       situations where the contractor provides exceptions consistent with CDC
       guidelines (such as where the employee is alone in an enclosed personal
       office or for a limited time while eating or drinking).
   * Designation of COVID-19 Workplace Safety Coordinator. Covered Contractors
     are required to designate a person(s) to “coordinate implementation of and
     compliance with this Guidance and the workplace safety protocols detailed
     herein at covered contractor workplaces.”  This person(s) must “ensure that
     information on required COVID-19 workplace safety protocols is provided to
     covered contractor employees and all other individuals likely to be present
     at covered contractor workplaces.”  They “must also ensure that covered
     contractor employees comply with the requirements in this guidance related
     to the showing or provision of proper vaccination documentation.”

What Locations and Employees Are Subject to the Requirements?  As suggested by
the Executive Order, the new requirements will apply to covered Contractor
workplaces.  The Guidance defines such “covered contractor workplaces” as “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.”  (emphasis added).  Therefore, all employees, whether or not they
work on or in connection with a covered contract, will be subject to the
requirements if anyone at their workplace works on or in connection with a
covered contract or is likely to be present at their workplace during the
applicable contract’s performance period.  Further, employees who work on or in
connection with a covered contract – regardless of whether they work in a
covered contractor workplace – must comply with the vaccination requirement even
if they perform their work remotely.

The guidance includes a set of Frequently Asked Questions (“FAQs”) which
provides additional detail.  For example:

 * Covered workplaces include outdoor workplace locations.
 * Where employees working on or in connection with a covered contract work on
   only one floor or area of a workplace (including a building/site/facility on
   a larger Contractor-controlled campus), the requirements will still apply to
   all employees at the worksite unless the Contractor “can affirmatively
   determine that none of its employees on another floor or in separate areas of
   the building will come into contact with a covered contractor employee during
   the period of performance of a covered contract … including interactions
   through use of common areas such as lobbies, security clearance areas,
   elevators, stairwells, meeting rooms, kitchens, dining areas, and parking
   garages.”
 * Employees working “in connection with” a covered contract are those “who
   perform duties necessary to the performance of the covered contract, but who
   are not directly engaged in performing the specific work called for by the
   covered contract, such as human resources, billing, and legal review.” The
   FAQ includes no threshold for the amount of “connected” work required for
   such employees to be covered by the requirements.

As noted above, the Guidelines are subject to change and we will report on any
noteworthy changes and other developments here.  Contractors should become
familiar with these requirements and be aware that any new federal government
contract, contract extension, or contract renewal will likely include these
requirements.  Those expecting to be subject to the new requirements should
assess which workplaces may be impacted and how the Guidance differs from their
current COVID-19 protocols.

*     *     *

[1] As we previously reported, the Executive Order explains that the requirement
will apply to a new contract and contract-like instrument if: “(i)  it is a
procurement contract or contract-like instrument for services, construction, or
a leasehold interest in real property; (ii)  it is a contract or contract-like
instrument for services covered by the Service Contract Act, 41 U.S.C. 6701 et
seq.; (iii)  it is a contract or contract-like instrument for concessions,
including any concessions contract excluded by Department of Labor regulations
at 29 C.F.R. 4.133(b); or (iv)  it is a contract or contract-like instrument
entered into with the Federal Government in connection with Federal property or
lands and related to offering services for Federal employees, their dependents,
or the general public.”

Per the Executive Order, the new requirement will not apply to “(i)  grants;
(ii)  contracts, contract-like instruments, or agreements with Indian Tribes
under the Indian Self-Determination and Education Assistance Act (Public Law
93-638), as amended; (iii)  contracts or subcontracts whose value is equal to or
less than the simplified acquisition threshold, as that term is defined in
section 2.101 of the Federal Acquisition Regulation [generally $250,000];
(iv)  employees who perform work outside the United States or its outlying
areas, as those terms are defined in section 2.101 of the Federal Acquisition
Regulation; or (v)  subcontracts solely for the provision of products.”  As
noted above, even though the Executive Order expressly carves out these
contracts from its COVID-19 safety requirement mandate, the Guidelines may still
be incorporated into such new contracts and contract-like instruments.

Subscribe to Proskauer’s Law and the Workplace blog to stay current on the
latest Biden administration developments impacting your business. Proskauer’s
cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on
supporting and addressing client concerns. Visit our Coronavirus Resource
Center for guidance on risk management measures, practical steps businesses can
take and resources to help manage ongoing operations.

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OFCCP MOVES ONE STEP CLOSER TO AAP VERIFICATION

By Guy Brenner and Ariel Brotman on September 23, 2021 Posted in Affirmative
Action Plan (AAP), Federal Contractors, OFCCP

In a step toward implementation of OFCCP’s Affirmative Action Program (“AAP”)
Verification Initiative, the Office of Management and Budget (OMB) approved an
Affirmative Action Program Verification Interface (AAP-VI) that OFCCP developed
for federal contractors to submit AAPs.

Although the verification program has not yet launched, and details are scarce,
the OFCCP already has an AAP-VI website which promises the program is “Coming
Soon” and explains that “Affirmative Action Program Verification Interface
(AAP-VI) is a secure web based interface created to improve communication and
the transfer of Affirmative Action Program data, between Federal Contractors and
the Office of Federal Contract Compliance Programs.”

As previously reported, in furtherance of Directive 2018-07, on September 14,
2020, OFCCP published a notice soliciting comments concerning its proposal to
obtain approval from the OMB to implement the AAP-VI.  The notice stated the
AAP-VI would be used to assist with a yet-to-be-established AAP online
certification process for federal contractors and provide a secure method for
federal contractors to submit AAPs electronically to OFCCP when they are
scheduled for a compliance evaluation.

Presently, federal contractors are only required to submit their AAPs via mail
or email and are not required to certify annually to the OFCCP that their AAPs
are compliant.  According to the OFCCP AAP-VI Federal Contractor User Guide,
“[t]he AAP-VI system will be the primary source for entering, tracking and
submitting [] Affirmative Action Programs for review by OFCCP.  AAP-VI will
provide federal contractors a system to submit their Programs in a more
efficient manner and provide visibility and reporting capabilities of the data
submitted by the Programs.”

We are still awaiting further details from the OFCCP, we will continue to
closely monitor and report on new developments.  In the meantime, additional
information can be found in OFCCP’s AAP-VI Administrative Guide and OFCCP’s
AAP-VI Federal Contractor User Guide.  Further, contractors should be getting
ready for the launch of the verification interface by making sure their AAPs are
prepared and ready for “prime time,” including ensuring they meet all of OFCCP’s
requirements.

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FEDERAL GOVERNMENT ISSUES NEW GUIDANCE ON VACCINATION REQUIREMENTS FOR
CONTRACTORS

By Guy Brenner and Megan Childs on September 20, 2021 Posted in Federal
Contractors

As previously reported, the Biden Administration issued an executive order on
September 9, 2021 setting forth new COVID-19 safety protocols for certain
federal contractors (the “Executive Order”). The Safer Federal Workforce Task
Force (the “Task Force”) is tasked with developing the COVID-19 safety
requirements that covered contractors and subcontractors will be required to
follow.

The Task Force has now released FAQs providing some information on what the
forthcoming COVID-19 safety requirements for covered federal contractors and
subcontractors will look like. Some of the key information disclosed in the FAQs
is as follows:

 1. Remote Workers May Be Covered. As we previously reported, the new COVID-19
    requirements will be imposed on contractors who enter into certain new
    contracts or contract-like instruments beginning October 15, 2021. While the
    precise requirements have yet to be issued, it appears – based on the
    requirements imposed on federal employees – covered contractors may be
    required to have covered employees vaccinated regardless of whether they
    work remotely.
 2. Disability and Religious Exceptions. Also gleaned from the federal employee
    guidance is that there will likely be “limited” exceptions from the
    vaccination requirements for “employees who communicate to the agency that
    they are not vaccinated against COVID-19 because of a disability or because
    of a sincerely held religious belief, practice, or observance.” The FAQs
    note the exception analysis is fact-specific and must be conducted on a
    case-by-case basis, but also indicate “[a]dditional guidance on legally
    required exceptions will be forthcoming.”
 3. Expanded Applicability of Vaccination Requirements. Notwithstanding the fact
    the Executive Order only imposes the new COVID-19 requirements on certain
    contractors based on the type and date of their federal government
    contracts, the FAQs state “[a]gencies are strongly encouraged to incorporate
    [employee] vaccination requirements into contracts that are not covered by
    [the] Executive Order… This might include, for example, incorporating
    vaccination requirements into contracts in advance of when they are
    otherwise required by the Executive Order or incorporating requirements into
    contracts that are not covered by the Executive Order, such as contracts
    under the Simplified Acquisition Threshold.” (emphasis added). Accordingly,
    contractors that thought they would not be covered by the COVID-19 safety
    requirements based on the types of contracts they have with the government –
    e.g., contracts solely for the provision of products – will need to check
    their new and renewed contracts after October 15, 2021 to determine whether
    the new requirements are incorporated.
 4. Additional Guidance for Onsite Contractor Employees. Prior to the time
    contractors are required to implement vaccination requirements, agencies
    must ask about the vaccination status of all “onsite” contractor employees
    and should provide all onsite contractor employees with a Certification of
    Vaccination form before they enter any federal building or worksite. Onsite
    contractor employees must attest to the truthfulness of their response
    regarding their vaccination status, and anyone who fails to respond will be
    treated as not fully vaccinated for purposes of safety protocols onsite.
    Onsite contractor employees who are not fully vaccinated and are not
    required to be vaccinated are required to demonstrate proof of a negative
    COVID-19 test, dated within the prior three days, in order to enter a
    federal building or worksite. Agencies may determine the type of tests they
    will permit, but the test must be FDA-authorized to detect current infection
    and indicate the date of the results. There is an exception for contractor
    employees who are “regularly tested pursuant to an agency testing program.”
    Such workers “do not need to provide proof of a negative COVID-19 test from
    no later than the previous 3 days prior to entry to a federal building
    unless required to by the agency testing program.”

Further guidance and details will be issued in the coming days and weeks. We
will continue to report on developments as further information is released.

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GOVERNMENT CONTRACTOR EMPLOYEES TO BE SUBJECT TO MANDATORY VACCINE REQUIREMENTS

By Guy Brenner on September 10, 2021 Posted in Coronavirus

On September 9, 2021, the Biden Administration announced a host of
vaccine-related initiatives, reported on here. One of those initiatives is an
Executive Order which requires contractors to implement the guidance to be
published by the Safer Federal Workforce Task Force (the “Task Force”) in “any
workplace locations (as specified by the Task Force Guidance) in which an
individual is working on or in connection with a Federal Government contract or
contract-like instrument.”  This guidance has yet to be issued, but will include
mandatory vaccinations for covered workers.  It expands on the initiative
announced in July that required vaccination or testing for government contractor
employees working onsite at federal government facilities.  The new Task Force
guidance is not expected to include a testing option.

The new requirement will apply to certain new contracts and contract extensions
and renewals entered into on or after October 15, 2021.  The Executive Order
explains that the requirement will apply to a new contract and contract-like
instrument if:

(i)    it is a procurement contract or contract-like instrument for services,
construction, or a leasehold interest in real property;
(ii)   it is a contract or contract-like instrument for services covered by the
Service Contract Act, 41 U.S.C. 6701 et seq.;
(iii)  it is a contract or contract-like instrument for concessions, including
any concessions contract excluded by Department of Labor regulations at 29
C.F.R. 4.133(b); or
(iv)   it is a contract or contract-like instrument entered into with the
Federal Government in connection with Federal property or lands and related to
offering services for Federal employees, their dependents, or the general
public.

Per the Executive Order, the new requirement will not apply to

(i)    grants;
(ii)   contracts, contract-like instruments, or agreements with Indian Tribes
under the Indian Self-Determination and Education Assistance Act (Public Law
93-638), as amended;
(iii)  contracts or subcontracts whose value is equal to or less than the
simplified acquisition threshold, as that term is defined in section 2.101 of
the Federal Acquisition Regulation [generally $250,000];
(iv)   employees who perform work outside the United States or its outlying
areas, as those terms are defined in section 2.101 of the Federal Acquisition
Regulation; or
(v)    subcontracts solely for the provision of products.

We will report on new developments related to this initiative.

Subscribe to Proskauer’s Law and the Workplace blog to stay current on the
latest Biden administration developments impacting your business. Proskauer’s
cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on
supporting and addressing client concerns. Visit our Coronavirus Resource
Center for guidance on risk management measures, practical steps businesses can
take and resources to help manage ongoing operations.

Tags: covid-19, Mandatory, Vaccine
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NEW CENSUS DATA AVAILABLE FOR DEVELOPMENT OF AAPS

By Guy Brenner and Megan Childs on September 5, 2021 Posted in Affirmative
Action Plan (AAP), Census Bureau, Federal Contractors, OFCCP

On September 3, 2021, OFCCP issued a notice requiring federal contractors to use
the recently released 2014-2018 Equal Employment Opportunity Tabulation (“2018
EEO Tab”) to develop any Affirmative Action Programs (“AAPs”) that commence on
or after January 1, 2022. The 2018 EEO Tab was released earlier this year by the
U.S. Census Bureau. It replaces the 2006-2010 EEO Tabulation contractors have
been using for AAP purposes.

Under OFCCP regulations, federal contractors are required to “use the most
current and discrete statistical information available… includ[ing] census data”
to conduct availability analyses, which determine the availability of qualified
minorities and women for job openings. Determining availability is a key
requirement of an AAP because it is used “to establish a benchmark against which
the demographic composition of the contractor’s incumbent workforce can be
compared in order to determine whether barriers to equal employment opportunity
may exist within particular job groups.”

Although contractors must begin using the 2018 EEO Tab starting next year, they
may begin using it in the development of their AAPs earlier if they so choose.
The EEO Tab and additional information can be found on the Census Bureau’s
website.

As always, we will continue to report on developments as further details emerge.

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OFCCP TO RECONSIDER USE OF EEO -1 COMPONENT 2 DATA

By Guy Brenner and Megan Childs on September 2, 2021 Posted in Compensation,
Department of Labor, Discrimination, Employment Law, Federal Contractors, OFCCP

OFCCP announced on September 1, 2021 that it plans to rescind a November 2019
notice regarding EEO-1 Component 2 data. EEO-1 Component 2 data was required to
be submitted in 2019, and consists of aggregated employee wage and hours worked
data, categorized by EEO-1 classification, race, ethnicity, and sex. The 2019
notice provided OFCCP would not “request, accept, or use Component 2 data, as it
[did] not expect to find significant utility in the data given limited resources
and [the data’s] aggregated nature.”

Now, OFCCP has announced its 2019 decision was “premature and counter to the
agency’s interests in ensuring pay equity.” As such, the agency intends to
evaluate the Component 2 data’s utility in investigating potential pay
discrimination, noting the data may offer “insight into pay disparities across
industries and occupations and strengthen Federal efforts to combat pay
discrimination.”

It is important to note that OFCCP has not stated definitively whether it will
request, accept, or use Component 2 data in the future. The announcement only
provides that OFCCP is reconsidering its November 2019 decision not to request,
accept, or use the data.

One might wonder why, given that the EEOC elected not to renew the Component 2
aspect of the EEO-1 report, the OFCCP is reconsidering its prior determination
regarding the data. Indeed, in every standard compliance evaluation, OFCCP
receives far more detailed and useful contractor compensation data which it uses
to assess pay equity. The answer may be that OFCCP does not intend to request
such information from contractors in audits (which, unless the Component 2
report is reinstituted, would be beyond the proper temporal scope of any future
audit), but rather intends to analyze the data submitted by employers in 2019 to
assess and refine its audit practices and procedures. In its rescission notice,
OFCCP states its review of the data “could improve OFCCP’s ability to
efficiently and effectively investigate potential pay discrimination. Also,
analyzing compensation data in conjunction with other available information,
such as labor market survey data, could help OFCCP identify neutral criteria to
select contractors for compliance evaluations.”

We will continue to monitor this matter and report on developments as new
details emerge.

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OFCCP ANNOUNCES MORE AUDITS– WAS YOUR COMPANY SELECTED?

By Guy Brenner on September 1, 2021 Posted in OFCCP

On September 1, 2021, OFCCP announced the release of a new Corporate Scheduling
Announcement List (CSAL). The list consists of 400 federal construction
contractors, federally assisted contractors and subcontractors.  Note that the
list merely notifies these construction contractors that they will be audited in
the future, which gives them time to prepare.

Construction contractors are advised to review the CSAL (available here) to see
if they have been selected for an audit, and consult with counsel as necessary.

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RECENT UPDATES

 * FAR Council Issues Contractor Vaccination Contract Clause and Guidance
 * Additional Contractor Vaccination Mandate Guidance Issued
 * Potential Government Shutdown – What Every Federal Contractor Needs to Know
 * Vaccination Guidance Issued For Federal Contractors and Subcontractors
 * OFCCP Moves One Step Closer To AAP Verification
 * Federal Government Issues New Guidance on Vaccination Requirements for
   Contractors
 * Government Contractor Employees To Be Subject To Mandatory Vaccine
   Requirements
 * New Census Data Available for Development of AAPs
 * OFCCP to Reconsider Use of EEO -1 Component 2 Data
 * OFCCP Announces More Audits– Was Your Company Selected?




GOVERNMENT CONTRACTOR COMPLIANCE & REGULATORY UPDATE


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