New Guidance for Federal Contractors Requires Employee Vaccination: President Biden reveals the Path Out of the Pandemic

By: Olivia N. Daily

On September 24, 2021, President Biden revealed his Path Out of the Pandemic: COVID 19 Action Plan. President Biden also signed Executive Order 140042, which required federal contractors to take specific and delineated actions to protect their workers and prevent the spread of COVID-19. The actions contemplated by the Executive Order include the following:

  1. Ensuring that all employees are vaccinated, unless the employee is entitled to an accommodation;

In short, all employees are required to provide proof of vaccination unless they have a medical exemption or are abstaining because of a sincerely held religious belief, practice, or observance. Employees who were previously infected with COVID-19 are not exempted from this requirement. Proof of vaccination can take many forms; the Guidance mentions that employees may provide their COVID-19 vaccination card, a copy of the immunization record from the healthcare provider, a copy of the medical record documenting the vaccination, etc. Federal contractors are required to review documentation of vaccination to ensure that all employees are vaccinated but may review digital copies of the documentation (such as a photograph or scanned image). An employee may not provide a negative COVID-19 antibody test in lieu of providing actual proof of vaccination.

  1. Compliance with CDC Guidance related to masking and physical distancing while in federal contractor workplaces,

The relevant CDC guidance that needs to be implemented here depends on the contractor’s community. The Order notes that in areas with high or substantial community transmission, all contractors, regardless of vaccination status, need to wear masks. Masks are not required for fully vaccinated individuals working in areas with low to moderate community transmission. Individuals who are not fully vaccinated also need to maintain a distance of at least six feet from others. Covered contractors may provide accommodations to employees that cannot wear masks because of a disability or because of a sincerely held religious belief, practice, or observance.

  1. The designation of a person to coordinate COVID-related workplace safety efforts.

In addition to the above requirements under the new Executive Order, federal contractors need to designate an individual responsible for compliance with the Order. This individual will need to distribute information about safety measures and protocols enacted to reduce the transmission of COVID-19 and ensuring employee compliance with all federal and state mandates. They should also ensure that signage relating COVID-19 safety protocols to employees and visitors is installed throughout the workspace.

This guidance and Executive Order apply to all covered federal contractors, regardless of size or industry. Contractors and subcontractors should ensure employee compliance but should also provide information to their employees about the location of vaccination clinics and availability. In order to avoid liability for subcontractor noncompliance, federal contractors and subcontractors engaged in business with covered contractors should incorporate vaccination requirements in their agreements. General contractors are required to ensure that first-tier subcontractors incorporate the provisions as laid out in the Executive Order to ensure subcontractor compliance. Likewise, subcontractors who know that they are contracting with a federal contractor need to be cognizant of these provisions and their obligations under the Order. First tier subcontractors also have a responsibility to incorporate similar provisions into their own subcontracts and should take steps to ensure second-tier subcontractor compliance.

If federal contractors would like to ensure that all employees have access to vaccines, they may host a vaccination clinic, but this is certainly not a requirement. Rather, as discussed above, covered contractors can provide their employees with information about nearby vaccination clinics and providers. Dissemination of this information is the responsibility of the individual designated in subsection (3) discussed at length above.

For advice in implementing the most recent guidance for COVID-19 safety and with all other employment and contract law questions, please contact Olivia Daily at or your DSV attorney.

***The information contained on this website is for informational purposes and is not intended as formal legal advice and cannot be relied upon as such.  No attorney client relationship is established or intended as a result of the information contained on this website.***