In July, President Biden issued Executive Order 13991, creating the Safer Federal Workforce Task Force to oversee the development and implementation of agency COVID-19 workplace safety plans across the federal government. The Task Force has created protocol for federal employees, contractors and visitors working inside federal buildings or on federal lands or controlled areas that seemingly implicate construction contractors and subcontractors.

After the Food and Drug Administration (FDA) gave full approval of the Pfizer COVID-19 vaccine, President Biden’s administration took additional steps to promote use of the vaccine, starting with Federal employees and contractors. One of those steps is to require all federal employees, on site contractors, and visitors to federal buildings or federally controlled indoor workspaces and other individuals interacting with the federal workforce to complete a vaccination form upon entry. Employees, contractors or visitors who are not fully vaccinated or decline to provide their vaccination status must provide proof of a negative COVID-19 test from no later than the previous 3-days prior to entry to a Federal building or in-person participation in a Federally hosted meeting, event, or conference.

Here are three important tips regarding the increased safety protocol governing federal employees and contractors or on-site visitors.

1.    If an individual is vaccinated –

a.  In areas of low or moderate transmission, as defined by CDC, fully vaccinated people generally can safely participate in most activities, indoor or outdoor, without needing to wear a mask or maintain physical distance, and do not need to undertake regular testing.

Consistent with CDC guidance, agencies may have different protocols for fully vaccinated people in specific work settings, such as healthcare settings.

b.  In areas of high or substantial transmission, everyone, including fully vaccinated people, must wear a mask consistent with Federal requirements.

c.  An agency can determine the level of community transmission in a given area by referencing the CDC COVID-19 Data Tracker County View. If you are a contractor performing work on a project that includes a federal building, you also could consult the Data Tracker County View so that you can have your employees or contract workers ready for the protocol of wearing masks or not while on property (if vaccinated).

A quick note on masks — CDC recommends the following: disposable masks, masks that fit properly (snugly around the nose and chin with no large gaps around the sides of the face), masks made with breathable fabric (such as cotton), masks made with tightly woven fabric (i.e., fabrics that do not let light pass through when held up to a light source), masks with two or three layers, and masks with inner filter pockets.

2.  Employees or contractors who are unvaccinated, are not fully vaccinated, or who choose not to provide vaccine information are required to comply with CDC and agency guidance for not fully vaccinated individuals, including wearing masks regardless of the transmission rate in a given area, physical distancing, regular testing, and adhering to applicable travel restrictions.

3.  If an employee or contractor is unvaccinated or refuses to disclose their status on the required vaccination form, then they must provide proof of negative COVID-19 test within the previous 3-day period. The testing can be completed by a private testing company or the contractor can utilize an onsite testing service that the federal agency for that federal building has established.

Something to note, if as an employer, you do not require your employees to become vaccinated, then your employees will have to wear a mask while on property and also provide proof of a negative COVID-19 test within the previous 3-days. As a result, you should discuss the protocol of either having your employees tested regularly at a private testing center (i.e. CVS, Walgreens, etc.), have a private testing company arrive on site when your employees or workers arrive to be tested, and/or utilize the testing company that maybe used by the federal agency requiring such protocol. There will be cost associated with each option. However, each employee or contractor will have to be able to provide proof of the completed vaccination form and proof of negative COVID-19 within previous 3-days, if necessary, in order to stay on site.

While the Safer Federal Workforce Task Force allows for a choice in the vaccination form (whether to disclose your vaccination status or not), it does not force an employee or contractor to disclose their medical condition(s). However, even though the CDC has declared a pandemic which allows some questions about certain medical symptoms, employers should be careful about inquiring into an employee’s medical condition (which includes vaccination status). You may consider having the employee complete the vaccination form, hold onto the vaccination form during the work shift on the federal property and retain the negative COVID-19 test (if needed) so that you are not directly involved in asking an employee about his/her medical status. Consulting with an attorney to ensure that you as the employer are not violating any employment privacy laws is always advisable.

Always remember that the Safer Federal Workforce Task Force may reassess time the outlined protocol, as conditions warrant and as CDC guidelines are updated.  The Task Force also points out that where a locality has imposed additional pandemic-related requirements more protective than those set forth in these model safety principles, those requirements should be followed in Federal buildings and on Federal land in that locality. Therefore, if as an employer, you have jobs involving contracts with a federal agency and on federal lands, you should consistently and regularly consult with the general contractor on the federal project and consult with the Safer Federal Workforce Task Force’s website, and the local county in which the building is located.

If you would like to consult with an attorney on COVID-19 protocol in your company and/or on any projects on which you work, the attorneys in our Austin and Dallas offices are available to answer any questions you may have. You may reach us at info@gstexlaw.com.

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