Page 23 - COVID Executive Order Survival Guide Brochure

Can I Just Put Up A Poster And Email My Employees To Notify Them To Follow The New Rules?
No. The Guidance places upon the contractor the obligation to “ensure compliance.” To facilitate this internal policing, the Guidance requires contractors to appoint a COVID safety coordinator (who must be a Covered Employee), who will be responsible for providing updated information on the workplace protocols to employees and visitors, and ensuring compliance with such protocols. The Task Force did post sample signage for masking and physical distancing (here are links to signs for areas of high/substantial community transmission and low/moderate community transmission).
With regard to vaccinations, the coordinator (or other contractor employee) will have to review the vaccine documentation of their covered employees. This means a Covered Contractor cannot simply rely upon an employee’s self-certification – it must review some proof of vaccination. Acceptable documentation can be provided in hard copy or digital format (e.g., a scanned PDF or photo or the original documentation), and certain copies are permissible.
Can I Stand Up A New Affiliate And Put All My Federal Contracting There?
Great question, and the Task Force has a FAQ that provides some clarity. According to the Task Force, the rule CAN reach into affiliates. This can happen if the affiliate companies share workplace locations. The Task Force provides two important examples:
• First, employees of a non-covered entity working in a covered workplace of a covered affiliate will be deemed covered employees even though their legal employer holds no covered contract.
• Second, covered employees infect (i.e., bring within the reach of the clause) not only their covered workplace, but also the workplace of any affiliates in which they are likely to be present. The Task Force made clear this principle applies regardless of whether that affiliated workplace is “owned, leased, or otherwise controlled by” that affiliate.
Relatedly, the new Guidance still does not answer the question of whether an affiliate becomes covered simply by providing a “shared services” function — e.g., HR, Billing — to a covered entity. Consequently, for the moment at least, contractors have an argument that affiliated shared services do not render the affiliate covered. However, this interpretation is not without risk as the Government could deem the affiliate providing the shared service a subcontractor of the covered entity, which then would be subject to the flow down provisions of the clause. And, given the expansive definition of “Contract” in the EO, the Government has sufficient grounds to argue any shared services agreement between a parent and subsidiary, whether written or oral, constitutes an agreement mandating inclusion of the new FAR clause.
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EXECUTIVE ORDER 14042 SURVIVAL GUIDE | PAGE 23