Federal affirmative action obligations are imposed under Presidential Decree 11246 (Minorities and Women), the Rehabilitation (Persons with Disabilities) Act 1974 and the Vietnamese Era Veterans Readjustment Assistance Act 1974 („VEVRAA“ – Covered Veterans). The requirement to implement and maintain an affirmative action program can be made in two ways: either by: 1) a direct contractual relationship to provide goods or services to a federal government agency, or indirectly through a subcontract to provide goods or services necessary for the performance of the federal contract or subcontract another business; or (2) an internal relationship with a parent, subsidiary, department or affiliate that has a federal or subcontract. In the first part of a two-part series, we briefly look at what constitutes a government contract, and then offer a self-assessment checklist tool to determine coverage. In the next issue, we`ll explore how internal relationships can distribute coverage from one company to another in a large family of organizations. While it is important to monitor these cases and injunctions similar to E.O. 14042 as they navigate the justice system, in the short term, all federal contractors and subcontractors should be prepared to fully comply with the Task Force`s guidelines. The contractor`s covered employees include both full-time and part-time employees, noted Emily Harbison, an attorney at Reed Smith in Houston. Federal contractors and subcontractors should familiarize themselves with the guidelines and prepare to comply with potential new or existing covered contracts. The guidelines do not allow for a testing option like the OSHA ETS pending.
Therefore, contractors must determine whether vaccination is required for employees who are not working on or working with a federal contractor, which can be difficult to analyze due to the intricacies of the order and guidelines. In addition, many questions remain unanswered — for example, adjustments will be made to offset the cost of compliance, and for employees who benefit from legal exemptions from the vaccine, contractors will be required to implement testing requirements, which appears to be the case, at least for access to a federal workplace. The guidelines provide that a „covered contract“ is a contract or instrument similar to a contract that contains a specific clause as described in the order. It therefore appears that only contracts or instruments treated as contracts that actually contain the clause in the Ordinance are covered. This clause, which is contained in Article 2(a) of the Ordinance, provides as follows: The September 30 memo also issued Waiver Clause FAR 52.223-99 – Ensuring ADEQUATE COVID-19 Safety Protocols for Federal Contractors, which applies to tenders and service contracts, including construction. The memorandum also contained instructions to federal agencies to prepare and then issue their own FAR deviations in accordance with the authority given under FAR 1.4 and using the FAR Council guidelines provided in far 52.223-99. The main wording included in the FAR Notwithstanding Clause is as follows, which generally requires contractors to follow „all directions“ included on the Task Force`s website, including frequently amended questions („FAQs“): In the Guidelines for Federal Contractors updated on November 10, the Federal Workforce Safety Task Force clarified: that the contractors concerned must be fully vaccinated by 18 January at the latest. 2022. This requirement is not affected by the suspension of the temporary emergency standard.
For more information on the applicability of the mandate to contracts and contractual-type instruments, see my September 10 OMB blog post. Despite the fact that the task force`s guidelines explicitly state that updated requirements and vaccination mandates „replace“ any conflicting national or local laws or regulations, companies in some states, including Texas, face conflicting mandates at the national and local levels. For example, a recent Texas executive order banned COVID-19 vaccination warrants for all companies in the state, putting federal contractors and subcontractors in Texas in a difficult position to choose between complying with federal laws while violating Texas law or complying with local warrants while not qualifying for contracts with the federal government. To support these efforts, we encourage federal contractors and subcontractors to take the following steps as soon as possible: Executive departments and agencies, including independent entities, subject to the Federal Property and Administrative Services Act, 40 U.S.C. 102(4)(A) (agencies), must ensure, to the extent permitted by law, that contracts and instruments treated as contracts (as described in Section 5(a) of this Ordinance) provide a clause containing the contractor and all subcontractors (at B. each step) are included in subordinate subcontracts. This clause states that, during the term of the contract, the contractor or subcontractor must comply with all guidelines issued by the Federal Workforce Safety Working Group on the location of contractors or subcontractors (Working Group Guidelines or Guidance), provided that the Director of the Office of Management and Budget (Director) approves and determines the Guidelines for the Working Group: that the guidelines, if followed by contractors or subcontractors, promote economic efficiency and efficiency in the awarding of contracts at the federal level. „A person who works on a covered contract from their place of residence is an insured contractor and must meet the vaccination requirement for insured contractors, even if the employee never works on a covered contractor or federal workplace during the performance of the contract. The residence of an insured contractor is not a covered contractor`s workplace, so during the residency, the person does not have to meet the requirements for the contractors` covered workplaces, including those related to mask wearing and physical distancing, even if working on a covered contract,“ indicates the Working Group FAQ. Various federal agencies beyond those mentioned above have also issued their own class gaps. While there are some minor differences between the guidelines and implementation instructions issued by the various agencies, all generally require contractors and subcontractors at all levels to comply with „all guidelines issued by the working group.“ The guidelines also require that affected contractors not wear masks to insured employees who request accommodation because of a disability or a sincere religious belief. .