Appendix A - Contractor Employees Vaccine Letter Template.doc

Washington, D.C.

[Date] [Name and Address of the Contractor]

Re: Contract [XXXXXXXXX]: Requirements for Contractor Employee Vaccination and Testing Dear [Contractor], On September 9, 2021, President Biden announced his Path Out of the Pandemic: COVID-19 Action Plan. The President’s plan uses regulatory and other actions to substantially increase the number of Americans covered by vaccination requirements. The President also signed Executive Order (EO) 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, that requires Federal contractor employees to be vaccinated. The actions directed by the EO ensure that parties who contract with the Federal Government provide adequate COVID-19 safeguards in locations with individuals working on or in connection with a Federal Government contract or contract-like instrument. These workplace safety protocols 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. Definitions for the relevant terms utilized in the EO and other guidance are provided as Attachment 1 to this letter.

In accordance with the EO, the Safer Federal Workforce Task Force (Task Force) issued guidance on workplace safety protocols that will be required of contractors and subcontractors. 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 workplaces.

Covered contractors shall adhere to the requirements of the Task Force guidance, including, but not limited to, the recent guidance provided on September 24, 2021 which is available here. The OMB Director has, as authorized by the EO, approved this guidance. Exercising his delegated authority (see 3 U.S.C. § 301) under the Federal Property and Administrative Services Act, the Director has determined that this guidance will promote economy and efficiency in Federal contracting if adhered to by Government contractors and subcontractors. The Director has published this determination in the Federal Register.

The EO sets out a process for OMB and the Task Force to update the guidance for covered contractors, which the Task Force will consider doing based on future changes to CDC COVID-19 guidance and as warranted by the circumstances of the pandemic and public health conditions. The EO 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 a clause, consistent with the EO. The FAR Council has taken initial steps to provide appropriate policy direction to agency acquisition offices. The FAR Council is utilizing the deviation process in FAR Subpart 1.4. Once the Department of Justice’s (DOJ’s) FAR deviation has been executed, its contracting officers will include the new clause as prescribed in all covered contracts and contract-like instruments.

Notwithstanding the scope exclusions detailed in the EO, if I identify your firm’s Active Contract as having activities that require the immediate implementation of COVID-19 protocols, a bilateral modification incorporating the new clause will be issued as soon as practicable.

In the intervening time period, until your covered employees are contractually required to be vaccinated, onsite contractor employees must comply with COVID-19 protocols in order to promote Federal workplace safety. Given the different safety protocols for individuals who are fully vaccinated and those who are not fully vaccinated, your firm must inform me of the vaccination status of your onsite contractor employees who are not yet contractually required to be vaccinated. Individuals must attest to the truthfulness of the responses they provide. When a contractor employee discloses that they are not fully vaccinated or decline to provide information on their vaccination status, the individual should be treated as not fully vaccinated for purposes of implementing safety measures, including with respect to mask wearing and physical distancing.

On July 29, 2021, the Task Force released Agency Model Safety Principles that require onsite contractors at Federal facilities to attest to their COVID-19 vaccination status or be treated as not fully vaccinated for purposes of safety protocols. The Centers for Disease Control and Prevention (CDC) define an individual as fully vaccinated two weeks after administration of the first dose in a one-dose series of a vaccine, or the second dose of a two-dose series.

The Task Force has issued Frequently Asked Questions (FAQs) regarding the need to determine the vaccination status of onsite contractors. FAQs relevant to vaccination requirements, onsite contractors and safety protocols are included as an Attachment 2 to this memo for your information. Accordingly, it shall be the responsibility of the contractor to ensure that its employees and subcontractor employees working under the referenced contract truthfully attest to their vaccination status prior to their physical presence in DOJ facilities, and have a copy of the completed form in their possession at all times while onsite. If onsite contractor employees are not fully vaccinated or decline to state their vaccination status, they must present a negative COVID-19 test result dated within the three days before entry, as described below, and follow all posted/applicable safety practices.

Your firm must complete Attachment 3 by providing a roster of contract employees who are working on-site at a DOJ facility under the referenced contract. Your firm must also identify the employee(s) or other on-site contractor(s) who will serve as the Vaccination Attestation Sponsor (VAS) for compliance activities regarding facility access under this contract. The designated VAS for the contract must coordinate with onsite contractor employees to review required documentation to determine compliance with the Task Force and DOJ protocols prior to entering the facility. Please have each identified contract employee complete Attachment 4, Certification of Vaccination Form. No substitute forms are acceptable. The contractor should collect and retain the completed forms, and your employees must keep a copy of the completed form in their possession to present for entry to DOJ buildings and facilities, as discussed further below. Do not forward the completed forms to the Government.

Please provide me with a completed roster of onsite contractor employees, annotating the vaccination status of each employee (vaccinated or not fully unvaccinated), and return the list to me by [Date within 7 days of the letter issue date]. Contractor employees who decline to state their vaccine status should be noted as “not fully vaccinated” on Attachment 3 in order to properly classify the appropriate protocols the individual must follow. Any requests for a medical or religious accommodation from safety protocols should be handled by the contractor and the contractor should advise my office of any impacts to contract performance. If a contractor employee who is not fully vaccinated subsequently becomes fully vaccinated, the contractor shall secure an updated vaccination attestation from the employee and promptly notify me of the change in that individual’s vaccination status, otherwise, the contractor should provide an updated personnel roster including vaccination status to me on a weekly basis.

Security personnel in Department buildings (including those that are secured by the Federal Protective Service (FPS) as well as Justice Protective Service (JPS) contractors), may ask contract employees or visitors entering the building if they have the necessary vaccine attestation documentation. The Certification of Vaccination form should be filled out in advance, but blank forms will be available for those who arrive without completed forms. Contractor personnel also will be asked to read a self-screening health questionnaire and confirm that they understand and meet the standards for entry. The designated VAS for the contract at that facility location should coordinate with the entering contractor employee to review the documentation after FPS or JPS verification and determine compliance with the Task Force and DOJ facility protocols.

Notwithstanding the aforementioned security personnel protocols, effective October 15th, the designated VAS for each contract must begin coordinating with “not fully vaccinated” onsite contractor and subcontractor employees to review required documentation to determine compliance with the Task Force and DOJ protocols prior to entering the facility. In order to ensure contractor compliance, the contracting officer, or designated representative, may request that the VAS provide evidence of its compliance activities at the Federal facility (this will not include individuals’ medical information). The designated VAS must continue this compliance measure unless or until the VAS updates the contractor employee roster to report that all onsite contractor and subcontractor employees are fully vaccinated. The contractor must continue use of the vaccine attestation and testing protocols for not fully vaccinated contractor and subcontractor employees with documented reasonable accommodation determinations on file with the prime contractor.

Costs associated with testing or time lost due to denied access to DOJ facilities because of the lack of a negative test result are NOT reimbursable. Additionally, any costs associated with obtaining a COVID test are not billable as a direct charge to the contract. Finally, your firm is still responsible for ensuring that all contract deliverables are met. Please take whatever steps are necessary to ensure that assigned onsite contractor staff meet the requirements stated in this letter.

Please consult the Agency Workplace Safety Plan for restrictions on the presence of individuals in DOJ facilities who are ill themselves or who have been exposed to others with COVID-19. These restrictions apply to all onsite contractor employees under the referenced contract.

Thank you for doing your part to keep our community safe and healthy. Please let me know if you have any questions.

Sincerely, Contracting Officer

Enclosures

� The Executive Order and prescribed contract clause do not apply to: Contracts under the Simplified Acquisition Threshold (at or less than $250k in total contract value); Grants; Contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Educations Assistance Act (P.L. 93-638), as amended; Contractor employees who perform work outside the United States or its outlying areas; or Contracts, contract-like instruments, or subcontracts solely for the provision of products.

� Active Contract. A contract for which the contract closeout procedures set forth under FAR Subsection 4.804-5 have not been completed.

� The definition of “fully vaccinated” may change as booster shots become widely recommended and/or required. The Department will provide additional guidance on this topic as it becomes available.

� The COVID-19 test product must be an FDA-approved test that produces a report that is dated and clearly states the result of the testing.