Missouri Edmo 4 21 Cv 01300 8Th 21 3725 Doc 009 Att 02

Record facts

U.S. Court of Appeals for the Eighth Circuit · No. 4:21-cv-01300-DDN · Doc. 9-2 · 2021-09-24 · Docket on CourtListener

Full text

EXHIBIT 
B 
Case: 4:21-cv-01300-DDN   Doc. #:  9-2   Filed: 11/04/21   Page: 1 of 15 PageID #: 185

Safer Federal Workforce Task Force 
COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors 
Issued September 24, 2021 
Introduction 
On September 9, President Biden announced his Path Out of the Pandemic: COVID-19 Action 
Plan. One of the main goals of this science-based plan is to get more people vaccinated.  
As part of that plan, the President signed Executive Order 14042, Ensuring Adequate COVID 
Safety Protocols for Federal Contractors, (“the order”) which directs executive departments and 
agencies, including independent establishments subject to the Federal Property and 
Administrative Services Act, 40 U.S.C. § 102(4)(A), to ensure that covered contracts and 
contract-like instruments include a clause (“the clause”) that the contractor and any 
subcontractors (at any tier) shall incorporate into lower-tier subcontracts. This clause shall 
specify that the contractor or subcontractor shall, for the duration of the contract, comply with all 
guidance for contractor or subcontractor workplace locations published by the Safer Federal 
Workforce Task Force (“Task Force”), provided that the Director of the Office of Management 
and Budget (“OMB”) approves the Task Force Guidance (the or this “Guidance”) and determines 
that the Guidance, if adhered to by covered contractors, will promote economy and efficiency in 
Federal contracting.   
The actions directed by the order will ensure that parties who contract with the Federal 
Government provide COVID-19 safeguards in workplaces with individuals working on or in 
connection with a Federal Government contract or contract-like instrument. These workplace 
safety protocols will apply to all covered contractor employees, including contractor or 
subcontractor employees in covered contractor workplaces who are not working on a Federal 
Government contract or contract-like instrument. These safeguards will decrease the spread of 
SARS-CoV-2, the virus that causes COVID-19, which will decrease worker absence, reduce 
labor costs, and improve the efficiency of contractors and subcontractors performing work for 
the Federal Government.  
Pursuant to this Guidance, and in addition to any requirements or workplace safety protocols that 
are applicable because a contractor or subcontractor employee is present at a Federal workplace, 
Federal contractors and subcontractors with a covered contract will be required to conform to the 
following workplace safety protocols: 
1. COVID-19 vaccination of covered contractor employees, except in limited circumstances 
where an employee is legally entitled to an accommodation; 
2. Compliance by individuals, including covered contractor employees and visitors, with the 
Guidance related to masking and physical distancing while in covered contractor 
workplaces; and 
3. Designation by covered contractors of a person or persons to coordinate COVID-19 
workplace safety efforts at covered contractor workplaces. 
 1
Case: 4:21-cv-01300-DDN   Doc. #:  9-2   Filed: 11/04/21   Page: 2 of 15 PageID #: 186

The order also sets out a process for OMB and the Safer Federal Workforce Task Force to update 
the Guidance for covered contractors, which the Task Force will consider doing based on future 
changes to Centers for Disease Control and Prevention (“CDC”) COVID-19 guidance and as 
warranted by the circumstances of the pandemic and public health conditions. It also sets out a 
process for the Federal Acquisition Regulatory Council (“FAR Council”) to implement such 
protocols and guidance for covered Federal procurement solicitations and contracts subject to the 
Federal Acquisition Regulation (“FAR”) and for agencies that are responsible for covered 
contracts and contract-like instruments not subject to the FAR to take prompt action to ensure 
that those covered contracts and contract-like instruments include the clause, consistent with the 
order. 
Covered contractors shall adhere to the requirements of this Guidance. The Director of OMB 
has, as authorized by Executive Order 14042, approved this Guidance and has, an exercise of the 
delegation of authority (see 3 U.S.C. § 301) under the Federal Property and Administrative 
Services Act determined that this Guidance will promote economy and efficiency in Federal 
contracting if adhered to by Government contractors and subcontractors. The Director has 
published such determination in the Federal Register. 
 2
Case: 4:21-cv-01300-DDN   Doc. #:  9-2   Filed: 11/04/21   Page: 3 of 15 PageID #: 187

Definitions 
Community transmission – means the level of community transmission as set forth in the CDC 
COVID-19 Data Tracker County View. 
Contract and contract-like instrument – has the meaning set forth in the Department of Labor’s 
proposed rule, “Increasing the Minimum Wage for Federal Contractors,” 86 Fed. Reg. 38,816, 
38,887 (July 22, 2021). If the Department of Labor issues a final rule relating to that proposed 
rule, this term shall have the meaning set forth in that final rule. 
That proposed rule defines a contract or contract-like instrument as an agreement between two or 
more parties creating obligations that are enforceable or otherwise recognizable at law. This 
definition includes, but is not limited to, a mutually binding legal relationship obligating one 
party to furnish services (including construction) and another party to pay for them. The 
term contract includes all contracts and any subcontracts of any tier thereunder, whether 
negotiated or advertised, including any procurement actions, lease agreements, cooperative 
agreements, provider agreements, intergovernmental service agreements, service agreements, 
licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular 
form, and whether entered into verbally or in writing. The term contract shall be interpreted 
broadly as to include, but not be limited to, any contract within the definition provided in the 
FAR at 48 CFR chapter 1 or applicable Federal statutes. This definition includes, but is not 
limited to, any contract that may be covered under any Federal procurement statute. Contracts 
may be the result of competitive bidding or awarded to a single source under applicable authority 
to do so. In addition to bilateral instruments, contracts include, but are not limited to, awards and 
notices of awards; job orders or task letters issued under basic ordering agreements; letter 
contracts; orders, such as purchase orders, under which the contract becomes effective by written 
acceptance or performance; exercised contract options; and bilateral contract modifications. The 
term contract includes contracts covered by the Service Contract Act, contracts covered by the 
Davis-Bacon Act, concessions contracts not otherwise subject to the Service Contract Act, and 
contracts in connection with Federal property or land and related to offering services for Federal 
employees, their dependents, or the general public. 
Contractor or subcontractor workplace location – means a location where covered contract 
employees work, including a covered contractor workplace or Federal workplace. 
Covered contract – means any contract or contract-like instrument that includes the clause 
described in Section 2(a) of the order. 
Covered contractor – means a prime contractor or subcontractor at any tier who is party to a 
covered contract. 
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 
 3
Case: 4:21-cv-01300-DDN   Doc. #:  9-2   Filed: 11/04/21   Page: 4 of 15 PageID #: 188

contractor workplace. This includes employees of covered contractors who are not themselves 
working on or in connection with a covered contract.  
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. 
Federal workplace – means any place, site, installation, building, room, or facility in which any 
Federal executive department or agency conducts official business, or is within an executive 
department or agency’s jurisdiction, custody, or control.  
Fully vaccinated – People are considered fully vaccinated for COVID-19 two weeks after they 
have received the second dose in a two-dose series, or two weeks after they have received a 
single-dose vaccine. There is currently no post-vaccination time limit on fully vaccinated status; 
should such a limit be determined by the Centers for Disease Control and Prevention, that limit 
will be considered by the Task Force and OMB for possible updating of this Guidance.  
For purposes of this Guidance, people are considered fully vaccinated if they have received 
COVID-19 vaccines currently approved or authorized for emergency use by the U.S. Food and 
Drug Administration (Pfizer-BioNTech, Moderna, and Johnson & Johnson [J&J]/Janssen 
COVID-19 vaccines) or COVID-19 vaccines that have been listed for emergency use by the 
World Health Organization (e.g., AstraZeneca/Oxford). More information is available at Interim 
Clinical Considerations for Use of COVID-19 Vaccines | CDC. 
Clinical trial participants from a U.S. site who are documented to have received the full series of 
an “active” (not placebo) COVID-19 vaccine candidate, for which vaccine efficacy has been 
independently confirmed (e.g., by a data and safety monitoring board), can be considered fully 
vaccinated two weeks after they have completed the vaccine series. Currently, the Novavax 
COVID-19 vaccine meets these criteria. More information is available at the CDC website here. 
Mask – means any mask that is consistent with CDC recommendations as set forth in Types of 
Masks and Respirators | CDC. This may include 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, masks with inner filter pockets, and filtering facepiece respirators that are approved by 
the National Institute for Occupational Safety and Health or consistent with international 
standards. The following do not constitute masks for purposes of this Guidance: masks with 
exhalation valves, vents, or other openings; face shields only (without mask); or masks with 
single-layer fabric or thin fabric that does not block light.  
 4
Case: 4:21-cv-01300-DDN   Doc. #:  9-2   Filed: 11/04/21   Page: 5 of 15 PageID #: 189

Guidance 
Covered contractors are responsible for ensuring that covered contractor employees comply with 
the workplace safety protocols detailed below. Covered contractor employees must also comply 
with agency COVID-19 workplace safety requirements while in Federal workplaces. 
Consistent with applicable law, agencies are strongly encouraged to incorporate a clause 
requiring compliance with this Guidance into contracts that are not covered or directly addressed 
by the order because the contract is under the Simplified Acquisition Threshold as defined in 
section 2.101 of the FAR or is a contract or subcontract for the manufacturing of products. 
Agencies are also strongly encouraged to incorporate a clause requiring compliance with this 
Guidance into existing contracts and contract-like instruments prior to the date upon which the 
order requires inclusion of the clause.  
1. Vaccination of covered contractor employees, except in limited circumstances where an 
employee is legally entitled to an accommodation 
Covered contractors must ensure that all covered contractor employees are fully vaccinated for 
COVID-19, unless the employee is legally entitled to an accommodation. Covered contractor 
employees must be fully vaccinated 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 covered contract, and by the first day of the period of performance on an 
exercised option or extended or renewed contract when the clause has been incorporated into the 
covered contract.  
A covered contractor may be required to provide an accommodation to covered contractor 
employees who communicate to the covered contractor that they are not vaccinated against 
COVID-19 because of a disability (which would include medical conditions) or because of a 
sincerely held religious belief, practice, or observance. A covered contractor should review and 
consider what, if any, accommodation it must offer. Requests for “medical accommodation” or 
“medical exceptions” should be treated as requests for a disability accommodation.  
Should a Federal agency have an urgent, mission-critical need for a covered contractor to have 
covered contractor employees begin work on a covered contract or at a covered workplace before 
becoming fully vaccinated, the agency head may approve an exception for the covered contractor
—in the case of such limited exceptions, the covered contractor must ensure these covered 
contractor employees are fully vaccinated within 60 days of beginning work on a covered 
contract or at a covered workplace. The covered contractor must further ensure that such 
employees comply with masking and physical distancing requirements for not fully vaccinated 
individuals in covered workplaces prior to being fully vaccinated. 
The covered contractor must review its covered employees’ documentation to prove vaccination 
status. Covered contractors must require covered contractor employees to show or provide their 
 5
Case: 4:21-cv-01300-DDN   Doc. #:  9-2   Filed: 11/04/21   Page: 6 of 15 PageID #: 190

employer with one of the following documents: a copy of the record of immunization from a 
health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card (CDC Form 
MLS-319813_r, published on September 3, 2020), a copy of medical records documenting the 
vaccination, a copy of immunization records from a public health or State immunization 
information system, or a copy of any other official documentation verifying vaccination with 
information on the vaccine name, date(s) of administration, and the name of health care 
professional or clinic site administering vaccine. Covered contractors may allow covered 
contractor employees to show or provide to their employer a digital copy of such records, 
including, for example, a digital photograph, scanned image, or PDF of such a record. 
The covered contractor shall ensure compliance with the requirements in this Guidance related to 
the showing or provision of proper vaccination documentation. 
Covered contractors are strongly encouraged to incorporate similar vaccination requirements into 
their non-covered contracts and agreements with non-covered contractors whose employees 
perform work at covered contractor workplaces but who do not work on or in connection with a 
Federal contract, such as those contracts and agreements related to the provision of food services, 
onsite security, or groundskeeping services at covered contractor workplaces. 
2. Requirements related to masking and physical distancing while in covered contractor 
workplaces 
Covered contractors must ensure that all individuals, including covered contractor employees 
and visitors, comply with published CDC guidance for masking and physical distancing at a 
covered contractor workplace, as discussed further in this Guidance.  
In addition to the guidance set forth below, CDC’s guidance for mask wearing and physical 
distancing in specific settings, including healthcare, transportation, correctional and detention 
facilities, and schools, must be followed, as applicable.  
In areas of high or substantial community transmission, fully vaccinated people must wear a 
mask in indoor settings, except for limited exceptions discussed in this Guidance. In areas of low 
or moderate community transmission, fully vaccinated people do not need to wear a mask. Fully 
vaccinated individuals do not need to physically distance regardless of the level of transmission 
in the area.   
Individuals who are not fully vaccinated must wear a mask indoors and in certain outdoor 
settings (see below) regardless of the level of community transmission in the area. To the extent 
practicable, individuals who are not fully vaccinated should maintain a distance of at least six 
feet from others at all times, including in offices, conference rooms, and all other communal and 
work spaces. 
 6
Case: 4:21-cv-01300-DDN   Doc. #:  9-2   Filed: 11/04/21   Page: 7 of 15 PageID #: 191

Covered contractors must require individuals in covered contractor workplaces who are required 
to wear a mask to:  
•
Wear appropriate masks consistently and correctly (over mouth and nose).  
•
Wear appropriate masks in any common areas or shared workspaces (including open 
floorplan office space, cubicle embankments, and conference rooms).  
•
For individuals who are not fully vaccinated, wear a mask in crowded outdoor settings or 
during outdoor activities that involve sustained close contact with other people who are 
not fully vaccinated, consistent with CDC guidance.  
A covered contractor may be required to provide an accommodation to covered contractor 
employees who communicate to the covered contractor that they cannot wear a mask because of 
a disability (which would include medical conditions) or because of a sincerely held religious 
belief, practice, or observance. A covered contractor should review and consider what, if any, 
accommodation it must offer. 
Covered contractors may provide for exceptions to mask wearing and/or physical distancing 
requirements consistent with CDC guidelines, for example, when an individual is alone in an 
office with floor to ceiling walls and a closed door, or for a limited time when eating or drinking 
and maintaining appropriate distancing. Covered contractors may also provide exceptions for 
covered contractor employees engaging in activities in which a mask may get wet; high intensity 
activities where covered contractor employees are unable to wear a mask because of difficulty 
breathing; or activities for which wearing a mask would create a risk to workplace health, safety, 
or job duty as determined by a workplace risk assessment. Any such exceptions must be 
approved in writing by a duly authorized representative of the covered contractor to ensure 
compliance with this Guidance at covered contractor workplaces, as discussed further below. 
Masked individuals may be asked to lower their masks briefly for identification purposes in 
compliance with safety and security requirements.  
Covered contractors must check the CDC COVID-19 Data Tracker County View website for 
community transmission information in all areas where they have a covered contractor 
workplace at least weekly to determine proper workplace safety protocols. When the level of 
community transmission in the area of a covered contractor workplace increases from low or 
moderate to substantial or high, contractors and subcontractors should put in place more 
protective workplace safety protocols consistent with published guidelines. However, when the 
level of community transmission in the area of a covered contractor workplace is reduced from 
high or substantial to moderate or low, the level of community transmission must remain at that 
lower level for at least two consecutive weeks before the covered contractor utilizes those 
protocols recommended for areas of moderate or low community transmission. 
3. Designation by covered contractors of a person or persons to coordinate COVID-19 
workplace safety efforts at covered contractor workplaces. 
 7
Case: 4:21-cv-01300-DDN   Doc. #:  9-2   Filed: 11/04/21   Page: 8 of 15 PageID #: 192

Covered contractors shall designate a person or persons to coordinate implementation of and 
compliance with this Guidance and the workplace safety protocols detailed herein at covered 
contractor workplaces. The designated person or persons may be the same individual(s) 
responsible for implementing any additional COVID-19 workplace safety protocols required by 
local, State, or Federal law, and their responsibilities to coordinate COVID-19 workplace safety 
protocols may comprise some or all of their regular duties. 
The designated individual (or individuals) must ensure 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, including by communicating the required 
workplace safety protocols and related policies by email, websites, memoranda, flyers, or other 
means and posting signage at covered contractor workplaces that sets forth the requirements and 
workplace safety protocols in this Guidance in a readily understandable manner. This includes 
communicating the COVID-19 workplace safety protocols and requirements related to masking 
and physical distancing to visitors and all other individuals present at covered contractor 
workplaces. The designated individual (or individuals) must also ensure that covered contractor 
employees comply with the requirements in this guidance related to the showing or provision of 
proper vaccination documentation. 
 8
Case: 4:21-cv-01300-DDN   Doc. #:  9-2   Filed: 11/04/21   Page: 9 of 15 PageID #: 193

Frequently Asked Questions 
Vaccination and Safety Protocols 
Q1: How do covered contractors determine vaccination status of visitors to covered 
contractor workplaces?  
A: Covered contractors should post signage at entrances to covered contractor workplaces 
providing information on safety protocols for fully vaccinated and not fully vaccinated 
individuals, including the protocols defined in the masking and physical distancing section 
above, and instruct individuals to follow the appropriate workplace safety protocols while at the 
covered contractor workplace. Covered contractors may take other reasonable steps, such as by 
communicating workplace safety protocols to visitors prior to their arrival at a covered 
contractor workplace or requiring all visitors to follow masking and physical distancing 
protocols for not fully vaccinated individuals.  
Q2: Do covered contractors need to provide onsite vaccinations to their employees? 
 
A: Covered contractors should ensure their employees are aware of convenient opportunities to 
be vaccinated. Although covered contractors may choose to provide vaccinations at their 
facilities or workplaces, given the widespread availability of vaccinations, covered contractors 
are not required to do so.  
Q3: What should a contractor employee do if a covered contractor employee has lost or 
does not have a copy of required vaccination documentation? 
A: If covered contractor employees need new vaccination cards or copies of other documentation 
proof of vaccination, they should contact the vaccination provider site where they received their 
vaccine. Their provider should be able to provide them with new cards or documentation with 
up-to-date information about the vaccinations they have received. If the location where the 
covered contractor employees received their COVID-19 vaccine is no longer operating, the 
covered contractor employees should contact their State or local health department’s 
immunization information system (IIS) for assistance. Covered contractor employees should 
contact their State or local health department if they have additional questions about vaccination 
cards or vaccination records.  
An attestation of vaccination by the covered contractor employee is not an acceptable substitute 
for documentation of proof of vaccination.  
Q4: Who is responsible for determining if a covered contractor employee must be provided 
an accommodation because of a disability or because of a sincerely held religious belief, 
practice, or observance? 
 9
Case: 4:21-cv-01300-DDN   Doc. #:  9-2   Filed: 11/04/21   Page: 10 of 15 PageID #: 194

A:  A covered contractor may be required to provide an accommodation to contractor employees 
who communicate to the covered contractor that they are not vaccinated for COVID-19, or that 
they cannot wear a mask, because of a disability (which would include medical conditions) or 
because of a sincerely held religious belief, practice, or observance. A covered contractor should 
review and consider what, if any, accommodation it must offer. The contractor is responsible for 
considering, and dispositioning, such requests for accommodations regardless of the covered 
contractor employee’s place of performance. If the agency that is the party to the covered 
contract is a “joint employer” for purposes of compliance with the Rehabilitation Act and Title 
VII of the Civil Rights Act, both the agency and the covered contractor should review and 
consider what, if any, accommodation they must offer.    
Q5: Are covered contractor employees who have a prior COVID-19 infection required to be 
vaccinated?   
A: Yes, covered contractor employees who have had a prior COVID-19 infection are required to 
be vaccinated. More information from CDC can be found here. 
Q6: Can a covered contractor accept a recent antibody test from a covered contractor 
employee to prove vaccination status? 
A: No. A covered contractor cannot accept a recent antibody test from a covered contractor 
employee to prove vaccination status. 
Workplaces 
Q7: Does this Guidance apply to outdoor contractor or subcontractor workplace locations?  
A: Yes, this Guidance applies to contractor or subcontractor workplace locations that are 
outdoors.  
Q8: If a covered contractor employee is likely to be present during the period of 
performance for a covered contract on only one floor or a separate area of a building, site, 
or facility controlled by a covered contractor, do other areas of the building, site, or facility 
controlled by a covered contractor constitute a covered contractor workplace?  
A: Yes, unless a covered contractor can affirmatively determine that none of its employees on 
another floor or in separate areas of the building will come into contact with a covered contractor 
employee during the period of performance of a covered contract. This would include 
affirmatively determining that there will be no interactions between covered contractor 
employees and non-covered contractor employees in those locations during the period of 
performance on a covered contract, including interactions through use of common areas such as 
lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and 
parking garages.  
 
10
Case: 4:21-cv-01300-DDN   Doc. #:  9-2   Filed: 11/04/21   Page: 11 of 15 PageID #: 195

Q9: If a covered contractor employee performs their duties in or at only one building, site, 
or facility on a campus controlled by a covered contractor with multiple buildings, sites, or 
facilities, are the other buildings, sites, or facility controlled by a covered contractor 
considered a covered contractor workplace?  
A: Yes, unless a covered contractor can affirmatively determine that none of its employees in or 
at one building, site, or facility will come into contact with a covered contractor employee during 
the period of performance of a covered contract. This would include affirmatively determining 
that there will be no interactions between covered contractor employees and non-covered 
contractor employees in those locations during the period of performance on a covered contract, 
including interactions through use of common areas such as lobbies, security clearance areas, 
elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.   
Q10: Are the workplace safety protocols enumerated above the same irrespective of 
whether the work is performed at a covered contractor workplace or at a Federal 
workplace? 
A:  Yes. The Guidance applies to all covered contractor employees and to all contractor or 
subcontractor workplace locations. While at a Federal workplace, covered contractor employees 
must also comply with any additional agency workplace safety requirements for that workplace. 
Because covered contractor employees working on a covered contract need to be fully 
vaccinated after December 8, 2021, covered contractor employees who work only at a Federal 
workplace need to be fully vaccinated by that date as well, unless legally entitled to an 
accommodation. 
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. A covered contractor employee’s residence is not a 
covered contractor workplace, so while in the residence the individual need not comply with 
requirements for covered contractor workplaces, including those related to masking and physical 
distancing, even while working on a covered contract. 
Scope and Applicability 
Q12:  By when must the requirements of the order be reflected in contracts?   
A:  Section 6 of the order lays out a phase-in of the requirements for covered contracts as 
follows: 
 
11
Case: 4:21-cv-01300-DDN   Doc. #:  9-2   Filed: 11/04/21   Page: 12 of 15 PageID #: 196

•
Contracts awarded prior to October 15 where performance is ongoing – the requirements 
must be incorporated at the point at which an option is exercised or an extension is made.  
•
New contracts – the requirements must be incorporated into contracts awarded on or after 
November 14.  Between October 15 and November 14, agencies must include the clause 
in the solicitation and are encouraged to include the clause in contracts awarded during 
this time period but are not required to do so unless the solicitation for such contract was 
issued on or after October 15.   
Q13:  Must the order’s requirements be flowed down to all lower-tier subcontractors and, 
if so, who is responsible for flowing the clause down? 
A: Yes. The requirements in the order apply to subcontractors at all tiers, except for subcontracts 
solely for the provision of products. The prime contractor must flow the clause down to first-tier 
subcontractors; higher-tier subcontractors must flow the clause down to the next lower-tier 
subcontractor, to the point at which subcontract requirements are solely for the provision of 
products.   
Q14: Does the Guidance apply to small businesses? 
A: Yes, the requirement to comply with this Guidance applies equally to covered contractors 
regardless of whether they are a small business. This broad application of COVID-19 guidance 
will more effectively decrease the spread of COVID-19, which, in turn, will decrease worker 
absence, reduce labor costs, and improve the efficiency of contractors and subcontractors at 
workplaces where they are performing work for the Federal Government.  
Q15: What steps are being taken to promote consistent application of the order’s 
requirements across agencies? 
A: The FAR Council will conduct a rulemaking to amend the FAR to include a clause that 
requires covered contractors performing under FAR-based contracts to comply with this 
Guidance for contractor and subcontractor workplace locations. Prior to rulemaking, by October 
8, 2021, the FAR Council will develop a clause and recommend that agencies exercise their 
authority to deviate from the FAR using the procedures set forth in subpart 1.4. Agencies 
responsible for contracts and contract-like instruments that are not subject to the FAR, such as 
concession contracts, will be responsible for developing appropriate guidance by October 8, 
2021 to incorporate requirements into their covered instruments entered into on or after October 
15, 2021.   
Q16:  If the Safer Federal Workforce Task Force updates this Guidance to add new 
requirements, do those requirements apply to existing contracts?  
A: Yes. Covered contractors are required to, for the duration of the contract, comply with all Task 
Force Guidance for contractor or subcontractor workplace locations, including any new 
 
12
Case: 4:21-cv-01300-DDN   Doc. #:  9-2   Filed: 11/04/21   Page: 13 of 15 PageID #: 197

Guidance where the OMB Director approves the Guidance and determines that adherence to the 
Guidance will promote economy and efficiency in Federal contracting. The Task Force and OMB 
plan to ensure any workplace safety protocols reflect what is necessary to decrease the spread of 
COVID-19.     
Q17: What constitutes work performed “in connection with” a covered contract?   
A:  Employees who perform duties necessary to the performance of the covered contract, but 
who are not directly engaged in performing the specific work called for by the covered contract, 
such as human resources, billing, and legal review, perform work in connection with a Federal 
Government contract. 
Q18: Do the workplace safety protocols in the Guidance apply to covered contractor 
employees who perform work outside the United States? 
A: No. The workplace safety protocols in the Guidance do not apply to covered contractor 
employees who only perform work outside the United States or its outlying areas, as those terms 
are defined in section 2.101 of the FAR. 
Compliance  
Q19: Does this clause apply in States or localities that seek to prohibit compliance with any 
of the workplace safety protocols set forth in this Guidance?  
A: Yes. These requirements are promulgated pursuant to Federal law and supersede any contrary 
State or local law or ordinance. Additionally, nothing in this Guidance shall excuse 
noncompliance with any applicable State law or municipal ordinance establishing more 
protective workplace safety protocols than those established under this Guidance. 
Q20: Can a covered contractor comply with workplace safety requirements from the 
Occupational Safety and Health Administration, including pursuant to any current or 
forthcoming Emergency Temporary Standard related to COVID-19, instead of the 
requirements of this Guidance?   
A: No. Covered contractors must comply with the requirements set forth in this Guidance 
regardless of whether they are subject to other workplace safety standards.  
Q21: What is the prime contractor’s responsibility for verifying that subcontractors are 
adhering to the mandate? 
A: The prime contractor is responsible for ensuring that the required clause is incorporated into 
its first-tier subcontracts in accordance with the implementation schedule set forth in section 6 of 
the order. When the clause is incorporated into a subcontract, a subcontractor is required to 
 
13
Case: 4:21-cv-01300-DDN   Doc. #:  9-2   Filed: 11/04/21   Page: 14 of 15 PageID #: 198

comply with this Guidance and the workplace safety protocols detailed herein. Additionally, 
first-tier subcontractors are expected to flow the clause down to their lower-tier subcontractors in 
similar fashion so that accountability for compliance is fully established throughout the Federal 
contract supply chain for covered subcontractor employees and workplaces at all tiers through 
application of the clause.  
 
14
Case: 4:21-cv-01300-DDN   Doc. #:  9-2   Filed: 11/04/21   Page: 15 of 15 PageID #: 199

File and source

File

Missouri_EDMO_4-21-cv-01300_8th-21-3725__doc-009__att-02.pdf

Size

272,872 bytes

SHA-256

456c6cc07647169b50ee66625bb89d487ed775956f1ad1d69b2be3f8d54bf043

Our copy

Missouri_EDMO_4-21-cv-01300_8th-21-3725__doc-009__att-02.pdf

Original

storage.courtlistener.com