• Please search to find attorneys
Close Btn



White House Issues Guidance On Federal Contractor Mandatory Vaccinations

On September 24, 2021, the White House issued its promised guidance for Federal Contractors and Subcontractors with respect to the mandatory vaccination program announced in the September 9, 2021 Executive Order.


The definition of a covered "contractor or contract-like instrument" is very broad. It includes virtually all contracts with the federal government and any subcontracts covered by the primary contract. Examples include the following:

  • Any procurement actions
  • Permits
  • Lease Agreements
  • Awards and Notices of awards
  • Cooperative Agreements
  • Job orders or task letters under basic ordering Agreement
  • Provider Agreements
  • Letter contracts
  • Intergovernmental Service Agreements
  • Bi-lateral contract modifications
  • Service Agreements
  • Or any other type of Agreement, whether verbally or in writing
  • Licenses

It also includes contracts covered by the Service Contract Act, the Davis-Bacon Act, concessions contracts, and contracts in connection with federal property or land and related to offering services for Federal employees, their dependents, or the general public. However, it would not include contracts valued below the federal simplified acquisition guideline, which generally is $250,000.00. Nor would it apply to subcontractor contracts for the supply of certain products.

A "covered contractor workplace" is defined as a location controlled by a covered contractor at which any employee of the covered contractor working on or in connection with the covered contract is likely to be present during the period of performance for a covered contract. It does not, however, apply to a covered contractor employee's residence, although it does cover employees who work remotely from home on covered contracts.

Vaccination Deadline:

By the terms of the September 9 Executive Order, it is to apply to all contracts entered into, extended or renewed on or after October 15, 2021. A specific clause to be inserted in federal procurement contracts to incorporate initial steps to implement policy directions to federal agencies is to be issued by October 8, 2021.

Covered contractors are tasked with ensuring that all covered contractor employees are fully vaccinated for COVID-19 unless legally entitled to an accommodation. That full vaccination 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 on a newly awarded contract and by the first day of the period of performance on an exercised option or extended or renewed contract when a clause has been incorporated into the covered contract.

An exception is set forth in the guidance where the work of a covered contract is urgent and "mission-critical" so that such workers could begin work before being fully vaccinated.

Exceptions to the mandatory vaccination requirement were described for a disability (which would include medical conditions), or because of a sincerely held religious belief, practice or observance.

The Guidance does not specify penalty for noncompliance, although they may include debarment or suspension of the contract.


A covered Contractor is required to review its covered employees' documentation to confirm vaccination status. Covered contractors must require covered contractors’ employees to show or provide their employer with documentation, as specifically described in the Guidance, of their vaccination.

Covered contractors are also required to ensure that all individuals, including covered contractors' employees and visitors, comply with CDC guidance for masking and physical distancing regardless of vaccination status. The Guidelines describe what an acceptable "mask" would be to be compliant with the Guidelines described above. It specifically excludes masks with exhalation valves, vents or other openings, face shields only, or masks with single-layer fabric or thin fabric that does not block light.

Individuals who are not fully vaccinated must wear masks indoors and in certain outdoor areas regardless of the level of community transmission in the area. Social distancing must be observed, to the extent practicable, at all times, including in offices, conference rooms, and other communal areas and workspaces. Exceptions to mask wearing may be provided consistent with the CDC Guidelines so that, for example, when an individual is alone in an office with shielding walls and a closed door or for a limited time when eating or drinking. Exceptions may also be provided when employees are engaging in activities in which a mask may get wet and during "high intensity activities" where covered contractor employees are unable to wear a mask because of difficulty breathing. All such exceptions must be approved in writing by a duly authorized representative of the covered contractor.

COVID-19 Coordinator:

Covered contractors are required to designate a person or persons to coordinate implementation of and compliance with the Guidance. That person has a number or duties, including ensuring 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.

Additional COVID-19 Requirements: 

  • Covered contractors must post signage at entrances to covered contractor workplaces providing information on safety protocols for fully vaccinated and not fully vaccinated individuals, including compliance with masking and physical distancing. Those individuals must be instructed to follow such protocols.
  • Covered contractor employees who have had a prior COVID-19 infection are still required to be vaccinated.
  • A recent antibody test is not acceptable to prove vaccination status.
  • The Guidance applies to covered contractors, regardless of their size, and specifically to small businesses.
  • The Guidance is specifically to apply in states or localities that seek to prohibit compliance with workplace safety protocols such as those set forth in the Guidance.
  • Covered contractors are mandated to comply with the Guidance's requirements regardless of whether they are subject to other workplace safety standards, such as those administered by OSHA.

A copy of the entire fourteen-page Guidance may be accessed by clicking here.

Obviously, there may be litigation to stop the application of both the Executive Orders (for federal employees and federal contractors) announced on September 9, 2021, these Guidelines, and the future Emergency Temporary Standards to be issued by OSHA. There may also be clarification of some of the information in these Guidelines. We will monitor any such litigation and continue to provide updated information as it is made available.

Given the breath of the definition of a Contract or Contract-like instrument, and because the Guidance relates to any and all subcontracts, even though the subcontractor may not have direct contact with the federal government, all employers should immediately begin to review their business contracts, agreements, and related documents to determine whether they may be considered a first-tier contractor with the federal government or a subcontractor of a lower-level subcontractor.