My colleagues and I here at Koprince McCall Pottroff have been hearing lots of questions about the new COVID-19 vaccine mandate for certain employees of federal government contractors. Perhaps unsurprisingly, given the pandemic-related rise in remote work, one of the most common questions is “are work-from-home employees required to be vaccinated?”
The answer, it turns out, is “it depends.”
The underlying Executive Order requires contractors to follow guidance issued by the Safer Federal Workplace Task Force. (Though it seems a little odd to me to call something “guidance” when it has the force of law). It is the guidance, not the Executive Order itself, that mandates vaccination.
The current guidance, issued on September 24, generally requires vaccination for so-called “covered contractor employees.” The guidance defines that term as follows:
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.
For purposes of this post, let’s assume that a contractor determines that it is a “covered contractor.” (That’s a term that is also defined in the guidance, but is outside the scope of our discussion of work-from home employees). With that assumption, an employee is covered if he or she:
- Is working on or in connection with a covered contract; or
- Is working at a covered contractor workplace.
Note that I emphasized the “or.” An employee is covered if either #1 or #2 applies to that employee. So in the case of an employee who works from home, the first question is whether that employee is working on or in connection with a covered contract. (“Covered contract” is also defined in the guidance, and the Task Force also provides some clarification–though perhaps not enough–about what it means to work “in connection with” a covered contract.)
If an employee works from home, but is working on or in connection with a covered contract, he or she is a “covered contractor employee”! The vaccination requirement will apply to such an employee, unless he or she is entitled to an accommodation or another exception, such as the exception for employees who work entirely outside the United States and its outlying areas.
In a Q&A included in the guidance, the Task Force addressed this issue directly:
Q11: How does this Guidance apply to covered contractor employees who are authorized under the covered contract to perform work remotely from their residence?
A: An individual working on a covered contract from their residence is a covered contractor employee, and must comply with the vaccination requirement for covered contractor employees, even if the employee never works at either a covered contractor workplace or Federal workplace during the performance of the contract.
While the vaccination requirement applies to such employees, the guidance also includes other COVID-19 mitigation requirements, such as masking and physical distancing.
But what about a work-from-home employee who is not working on or in connection with a covered contract? The second question is whether he or she is working at a “covered contractor workplace.” The guidance defines that term as follows:
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.
As the definition makes clear, an employee’s residence is not a covered contractor workplace. Therefore, a work-from-home employee who is not working on or in connection with a covered contract should not be considered a “covered contractor employee.”
One final note: although the vaccine mandate has gotten the vast bulk of the public attention, the guidance also requires other COVID-19 mitigation measures at covered contractor workplaces, such as masking and physical distancing. The Task Force says that because an employee’s residence is not a covered contractor workplace, “while in the residence the individual need not comply with the requirements for covered contractor workplaces, including those related to masking and physical distancing, even while working on a covered contract.”
Questions about this post? Or need help with a government contracting legal issue? Email us or give us a call at 785-200-8919.