Petition for Writ of Certiorari — Michael S. Freeman, II, Applicant v. Raytheon Technologies Corporation, et al.

OFFICE OF THE UNDER SECRETARY OF DEFENSE

3000 DEFENSE PENTAGON

WASHINGTON, DC 20301-3000

ACQUISITION

AND SUSTAINMENT

In reply refer to

DARS Tracking Number: 2021-00009

MEMORANDUM FOR COMMANDER, UNITED STATES CYBER

COMMAND (ATTN: ACQUISITION EXECUTIVE)

COMMANDER, UNITED STATES SPECIAL OPERATIONS

COMMAND (ATTN: ACQUISITION EXECUTIVE)

COMMANDER, UNITED STATES TRANSPORTATION

COMMAND (ATTN: ACQUISITION EXECUTIVE)

DEPUTY ASSISTANT SECRETARY OF THE ARMY

(PROCUREMENT)

DEPUTY ASSISTANT SECRETARY OF THE NAVY

(PROCUREMENT)

DEPUTY ASSISTANT SECRETARY OF THE AIR FORCE

(CONTRACTING)

DIRECTORS, DEFENSE AGENCIES

DIRECTORS, DEFENSE FIELD ACTIVITIES

SUBJECT: Class Deviation—Ensuring Adequate COVID-19 Safety Protocols for Federal

Contractors

Effective immediately, contracting officers shall insert the clause 252.223-7999, Ensuring

Adequate COVID-19 Safety Protocols for Federal Contractors (Deviation 2021-00009), in the

following solicitations, contracts, task orders, delivery orders, and modifications thereof that are

for services (including construction) performed in whole or in part within the United States or its

outlying areas:

e Solicitations issued on or after October 15, 2021, and contracts, task orders, and delivery

orders awarded pursuant to those solicitations, that are expected to exceed the simplified

acquisition threshold (SAT).

e Contracts, task orders, and delivery orders, awarded on or after November 14, 2021, from

solicitations issued before October 15, 2021, that exceed the SAT.

e All extensions or renewals, issued on or after October 15, 2021, of contracts, task orders,

and delivery orders that exceed the SAT.

e All options exercised, on or after October 15, 2021, on contracts, task orders, and

delivery orders that exceed the SAT.

e Existing indefinite-delivery, indefinite-quantity contracts that are anticipated to have

orders that exceed the SAT and that have an ordering period that extends beyond

October 15, 2021.

Class Deviation 2021-00009

Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors

The deviation clause is not required in contracts or subcontracts with Indian Tribes under

the Indian Self-Determination and Education Assistance Act (the exclusion would not apply to a

procurement contract or subcontract under the Federal Acquisition Regulation (FAR) to an

Indian-owned or tribally-owned business entity).

In accordance with the Safer Federal Workforce Task Force Guidance and FAR

1.108(d)(2) and (3), contracting officers may insert the deviation clause in—

Solicitations issued prior to October 15, 2021;

Contracts, task orders, or delivery orders awarded before November 14, 2021, resulting

from solicitations issued before October 15, 2021;

e Solicitations, contracts, task orders, and delivery orders that are valued at or below the

SAT and are for services (including construction) performed in whole or in part within

the United States and its outlying areas; or

e Solicitations, contracts, task orders, and delivery orders for the manufacturing of

products.

When modifying existing contracts, task orders, or delivery orders in accordance with

this deviation, contracting officers shall use a bilateral modification to incorporate the deviation

clause.

This class deviation implements the requirements of Executive Order 14042, Ensuring

Adequate COVID Safety Protocols for Federal Contractors, dated September 9, 2021, which

directs agencies to include a clause in certain contracts to ensure that contractors comply with all

guidance for contractor and subcontractor workplace locations published by the Safer Federal

Workforce Task Force at: https:/www.saferfederalworkforce.gov/contractors/.

This class deviation remains in effect until incorporated into the FAR or until otherwise

rescinded. Please direct any comments or questions to Defense Pricing and Contracting,

Contract Policy, at osd.pentagon.ousd-a-s.mbx.asda-dp-c-contractpolicy@mail.mil.

TENAGLIA.JOH _ Dizitatly signed by

TENAGLIA.JOHN.M.1154945926

N.M.1154945926 bate: 2021.10.01 11:02:24 -04'00"

John M. Tenaglia

Principal Director,

Defense Pricing and Contracting

Attachment

As stated

Attachment 1

Class Deviation 2021-00009

Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors

252.223-7999 Ensuring Adequate COVID-19 Safety Protocols for Federal

Contractors (Deviation 2021-00009)

As prescribed in Class Deviation 2021-00009, Ensuring Adequate COVID-19 Safety

Protocols for Federal Contractors, use the following clause:

ENSURING ADEQUATE COVID-19 SAFETY PROTOCOLS FOR FEDERAL

CONTRACTORS (DEVIATION 2021-00009) (OCT 2021)

(a) Definition. As used in this clause —

United States or its outlying areas means—

(1) The fifty States;

(2) The District of Columbia;

(3) The commonwealths of Puerto Rico and the Northern Mariana Islands;

(4) The territories of American Samoa, Guam, and the United States Virgin

Islands; and

(5) The minor outlying islands of Baker Island, Howland Island, Jarvis

Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra

Atoll, and Wake Atoll.

(b) Authority. This clause implements Executive Order 14042, Ensuring

Adequate COVID Safety Protocols for Federal Contractors, dated September 9, 2021

(published in the Federal Register on September 14, 2021, 86 FR 50985).

(c) Compliance. The Contractor shall comply with all guidance, including

guidance conveyed through Frequently Asked Questions, as amended during the

performance of this contract, for contractor or subcontractor workplace locations

published by the Safer Federal Workforce Task Force (Task Force Guidance) at

https: /www.saferfederalworkforce.gov/contractors/.

(d) Subcontracts. The Contractor shall include the substance of this clause,

including this paragraph (d), in subcontracts at any tier that exceed the simplified

acquisition threshold, as defined in Federal Acquisition Regulation 2.101 on the

date of subcontract award, and are for services, including construction, performed in

whole or in part within the United States or its outlying areas.

(End of clause)

Page 1 of 1

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, mcluding 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.

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.

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

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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.c.,

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.

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

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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.

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.

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.

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?

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 “jomt 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

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 whe 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

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.

Q1I4: 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

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

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

Centers for Disease

CD C Control and Prevention

COVID-19

Interim Guidance for SARS-CoV-2 Testing in Non-

Healthcare Workplaces

Updated Oct. 5, 2021

Summary of Recent Changes

Updates as of October 6, 2021 “Aw

¢ Updated descriptions of test types.

* Updated to align with new antigen testing algorithms, one for community settings HB and one for congregate

settings @ .

e Updated testing recommendations for fully vaccinated workers who are close contacts of someone with COVID-19.

e Clarified that screening testing recommendations apply to asymptomatic, unvaccinated workers.

View Previous Updates

Key Points

* Workplace-based testing for SARS-CoV-2, the virus that causes COVID-19, could identify workers with SARS-CoV-2

infection, and thus help prevent or reduce further transmission. The purpose of this guidance is to provide employers

with considerations for incorporating testing for SARS-CoV-2 into a workplace COVID-19 preparedness, response, and

control plan in non-healthcare workplaces.

¢ This guidance includes descriptions of different types of SARS-CoV-2 tests; scenarios where SARS-CoV-2 testing may be

used; considerations for screening testing (testing asymptomatic and unvaccinated workers with no known or suspected

exposure to SARS-CoV-2); and use of antigen tests for serial screening testing.

¢ Screening testing could be effective in helping to prevent transmission for workplace settings.

¢ These interim considerations on SARS-CoV-2 testing strategies for non-healthcare workplaces during the COVID-19

pandemic are based on what is currently known about the transmission and severity of COVID-19 and is subject to

change as additional information becomes available.

Note: This document provides guidance on the appropriate use of testing and does not dictate the determination of payment

decisions or insurance coverage of such testing, except as may be otherwise referenced (or prescribed) by another entity or

federal or state agency,

Introduction

The purpose of this document is to provide employers with strategies to consider for incorporating testing for SARS-CoV-2,

the virus that causes COVID-19, into workplace preparedness, response, and control plans in non-healthcare workplaces. For

workplaces with healthcare personnel, including those that work in nursing homes, please refer to Interim Infection

Prevention and Control Recommendations for Healthcare Personnel During the Coronavirus Disease 2019 (COVID-19)

Pandemic and Interim Infection Prevention and Control Recommendations to Prevent SARS-CoV-2 Spread in Nursing Homes.

Employers are encouraged to collaborate with state, territorial, tribal, and local health officials to determine whether and how

to implement the following testing strategies and which one(s) would be most appropriate for their circumstances, These

considerations are meant to supplement, not replace, any federal, state, local, territorial, or tribal health and safety laws,

rules, and regulations with which workplaces must comply. These strategies should be carried out in a manner consistent

with existing laws and regulations, including laws protecting employee privacy and confidentiality. They should also be carried

out consistent with Equal Employment Opportunity Commission (EEOC) guidance 4 regarding permissible testing policies

and procedures. Employers providing testing of employees should put procedures in place for rapid notification of results

and establish appropriate measures based on testing results, including instructions regarding self-isolation and restrictions

on workplace access.

Considerations when testing

SARS-CoV-2 testing may be incorporated as part of a comprehensive approach to reducing transmission in non-healthcare

workplaces. Testing identifies workers infected with SARS-CoV-2, the virus that causes COVID-19, so that actions can be taken

to slow and stop the spread of the virus.

Employees undergoing testing should receive clear information on:

¢ the manufacturer and name of the test, the type of test, the purpose of the test, the performance specifications of the

test, any limitations associated with the test, who will pay for the test, how the test will be performed, how and when

they will receive test results, and;

¢ how to understand what the results mean, actions associated with negative or positive results, the difference between

testing for workplace screening versus for medical diagnosis, who will receive the results, how the results may be used,

and any consequences for declining to be tested.

Individuals tested are required to receive patient fact sheets as part of the test's emergency use authorization [4 (EUA).

According to the Americans with Disabilities Act (ADA), when employers implement any mandatory testing of employees, it

must be “job related and consistent with business necessity.” In the context of the COVID-19 pandemic, the U.S. EEOC 4

notes that testing to determine if an employee has SARS-CoV-2 infection with an “accurate and reliable test” is permissible as

a condition to enter the workplace because an employee with the virus will “pose a direct threat to the health of others.” EEOC

notes that testing administered by employers that is consistent with current CDC guidance will meet the ADA’s business

necessity standard. Employers who mandate workplace testing for SARS-CoV-2 infection should discuss further with

employees who decline testing and consider providing alternatives as feasible and appropriate, such as reassignment to tasks

that can be performed via telework.

Under OSHA's recordkeeping requirements in 29 CFR Part 1904 [4, COVID-19 can be a recordable illness 4. Thus, employers

are responsible for recording cases of COVID-19, if the case meets certain requirements. Employers are encouraged to

frequently check OSHA's webpage [% for updates.

Test types

Viral tests

Viral tests, including nucleic acid amplification tests (NAATs) and antigen tests, are used as diagnostic tests to detect

infection with SARS-CoV-2 and to inform an individual's medical care. Viral tests can also be used as screening tests to reduce

the transmission of SARS-CoV-2 by identifying infected persons who need to isolate from others. See FDA's list of In Vitro

Diagnostics Emergency Use Authorizations [4 for more information about the performance of specific authorized tests.

e NAATs, such as real-time reverse transcription-polymerase chain reaction (RT-PCR), are high-sensitivity, high-specificity

tests for diagnosing SARS-CoV-2 infection. NAATs detect genetic material (nucleic acids). NAATs for SARS-CoV-2

specifically identify the ribonucleic acid (RNA) sequences that comprise the genetic material of the virus. Most NAATs

need to be processed in a laboratory and time to results can vary (~1-3 days), but some NAATs are point-of-care (POC)

tests with results available in about 15-45 minutes. Because laboratory-based NAATs are considered the most sensitive

tests for detecting SARS-CoV-2, they can also be used to confirm the results of lower sensitivity tests, such as POC NAATs

or antigen tests.

e Antigen tests are immunoassays that detect the presence of a specific viral antigen. Antigen tests generally have similar

specificity but are less sensitive than most NAATs. Most can be processed at the point of care with results available in

minutes and thus can be used in screening programs to quickly identify those who are likely to be contagious. Because

of the performance characteristics of antigen tests, it may be necessary to confirm some antigen test results (e.g., a

negative test in persons with symptoms or a positive test in persons without symptoms) with a laboratory-based NAAT.

Furthermore, based on the authorization from FDA [4 , some point-of-care NAATs cannot be used for confirmatory

testing. Use of the appropriate antigen testing algorithm is recommended to determine when confirmatory testing is

needed.

Antibody tests

Antibody (or serology) tests are used to detect previous infection with SARS-CoV-2 and can aid in the diagnosis of multisystem

inflammatory syndrome in children (MIS-C) and in adults (MIS-A). CDC does not recommend using antibody testing to

diagnose current infection. Depending on the time when someone was infected and the timing of the test, the test might not

detect antibodies in someone with a current infection. In addition, it is not currently known whether a positive antibody test

result indicates protective immunity against SARS-CoV-2; therefore, at this time, antibody tests should not be used to

determine if an individual is immune against reinfection. Antibody testing is being used for public health surveillance and

epidemiologic purposes. Because antibody tests can have different targets on the virus, specific tests might be needed to

assess for antibodies originating from past infection versus those from vaccination. For more information about COVID-19

vaccines and antibody test results, refer to Interim Clinical Considerations for Use of COVID-19 Vaccines Currently Approved

or Authorized in the United States.

For more information, please refer to Overview of Testing for SARS-CoV-2 (COVID-19).

Overview of testing scenarios

Diagnostic testing is intended to identify current infection in individuals and is performed when a person has signs or

symptoms consistent with COVID-19 or when a person is asymptomatic but has a recent known or suspected exposure to

SARS-CoV-2.

Examples of diagnostic testing include:

¢ Testing people who have symptoms consistent with COVID-19 and who present to their healthcare provider

e Testing people as a result of contact tracing efforts

* Testing people who indicate that they were exposed to someone with a confirmed or suspected case of COVID-19.

¢ Testing people who attended an event where another attendee was later confirmed to have COVID-19

Screening tests are intended to identify infected people who are asymptomatic and do not have known, suspected, or

reported exposure to SARS-CoV-2. Screening helps to identify unknown cases so that measures can be taken to prevent

further transmission.

Examples of screening testing include:

e Testing unvaccinated employees in a workplace setting

e Testing unvaccinated students, faculty, and staff in a K-12 school or institute of higher education setting

e Testing an unvaccinated person before or after travel

e Testing at home for someone who does not have symptoms associated with COVID-19 and no known exposures to

someone with COVID-19

Choosing a test

When choosing which test to use, it is important to understand the purpose of the testing (e.g., diagnostic vs. screening),

analytic performance of the test within the context of the level of community transmission, need for rapid results, and other

considerations (See Table 1). The COVID-19 Viral Testing Tool helps healthcare providers and individuals understand their

COVID-19 testing options. After test results are in, the tool can help interpret results and guide next steps.

Table 1 summarizes some characteristics of NAATs and antigen tests to consider. Most antigen tests that have received EUA

from FDA[4 are authorized for testing symptomatic persons within the first 5, 6, 7, 12, or 14 days of symptom onset.

Accumulation of data on the performance of antigen tests in different situations has helped guide the use of these tests as

screening tests in asymptomatic people to detect or exclude SARS-CoV-2 infection. See FDA's recommendations for healthcare

providers using SARS-CoV-2 diagnostic tests for screening asymptomatic individuals for COVID-19 [4. Also see information

from the Centers for Medicare & Medicaid Services (CMS) en U

pdated CLIA SARS-CoV-2 Molecular and Antigen Point of Care

Test Enforcement Discretion && [4. Laboratories that perform screening or diagnostic testing for SARS-CoV-2 must have a

Clinical Laboratory Improvement Amendments (CLIA) certificate and meet regulatory requirements. Tests that have received

an EUA from FDA for point of care (POC) use can be performed with a CLIA certificate of waiver.

Table 1. NAAT and Antigen Test Differences to C

for Diagnostic or Screening Use

Intended Use

Analyte Detected

Specimen Type(s)

Sensitivity

Specificity

Test Complexity

Authorized for Use at the Point-of-

Care

Turnaround Time

Cost/Test4

Advantages

NAATs

Diagnose current infection

Viral Ribonucleic Acid (RNA)

Nasal, Nasopharyngeal,

Oropharyngeal, Sputum, Saliva

Varies by test, but generally high for

laboratory-based tests and

moderate-to-high for POC tests

High

Varies by test

Most are not, some are

Most 1-3 days. Some could be rapid

in 15 minutes

Moderate (~$75-$100/test)

Most sensitive test method available

onsider When Planning

Antigen Tests

Diagnose current infection

Viral Antigens

Nasal, Nasopharyngeal

Varies depending on the course of

infection, but generally moderate-tohigh at times of peak viral load*

High

Relatively easy to use

Most are, some are not

Ranges from 15 minutes to 30

minutes

Low (~$5-$50/test)

Short turnaround time

fannroximately 15 minittesY

Oe a a er errs

Short turnaround time for NAAT POC When performed at or near POC,

tests, but few available allows for rapid identification of

infected people, thus preventing

Usually does not need to be further virus transmission in the

repeated to confirm results community, workplace, etc.

Comparable performance to NAATs

for diagnosis in symptomatic

persons and/or if culturable virus

present

Disadvantages Longer turnaround time for lab- May need confirmatory testing

based tests (1-3 days)

Less sensitive (more false negative

Higher cost per test results) compared to NAATs,

especially among asymptomatic

A positive NAAT diagnostic test people and with some variants

should not be repeated within 90

days, because people may continue

to have detectable RNA after risk of

transmission has passed

*The decreased sensitivity of antigen tests might be offset if the POC antigen tests are repeated more frequently (i.e., serial

testing at least weekly).

A Costs for: NAATs [4

+Refers to point-of-care antigen tests only.

Considerations for testing in different scenarios

Diagnostic testing

Testing persons with signs or symptoms consistent with COVID-19

Employers may consider conducting daily in-person or virtual health checks (e.g., symptom and temperature screening) to

identify employees with signs or symptoms consistent with COVID-19 before they enter a facility. Employers should follow

guidance from the EEOC [4 regarding confidentiality of medical records from health checks.

Vaccinated and unvaccinated workers with COVID-19 symptoms should be immediately separated from other employees,

customers, and visitors, and sent home or to a healthcare facility, depending on how severe their symptoms are, and

follow CDC guidance for caring for oneself. To prevent stigma and discrimination in the workplace, make employee health

screenings as private as possible. CDC recommends that anyone with signs or symptoms of COVID-19 be tested and follow

the advice of their healthcare provider. Waiting for test results prior to returning to work is recommended to keep potentially

infected workers out of the workplace.

Employers are encouraged to implement flexible sick leave and supportive policies and practices as part of a comprehensive

approach to prevent and reduce transmission among employees.

Positive test results using a viral test (NAAT or antigen) in persons with signs or symptoms consistent with COVID-19 indicate

that the person has COVID-19 and should not come to work and should isolate at home. Decisions to discontinue isolation for

workers with COVID-19 and allow them to return to the workplace may follow either a symptom-based, time-based, or a testbased strategy (see Testing to determine resolution of infection below).

A negative antigen test in persons with signs or symptoms of COVID-19 should be confirmed by a laboratory-based NAAT, a

more sensitive test. Results from NAATs are considered the definitive result when there is a discrepancy between the antigen

and NAAT test. For more information, see the antigen test algorithms for community settings IM and congregate settings @.

Positive SARS-CoV-2 viral test result, or a report from a healthcare Provider of a patient with @ confirmed or probable

diagnosis of COVID-19 BL.

Fully vaccinated People who have come into close contact with someone with COVID-19 should be tested 5-7 days following

the date of their exposure and wear a mask in public indoor settings for 14 days or until they receive a negative test result.

They should isolate if they test positive,

points in time, also referred to as serial testing, is more likely to detect infection among close contacts of a COVID-19 case

than testing done at a single point in time. Viral testing is recommended for unvaccinated close contacts of persons with

COVID-19 immediately after being identified, and if negative, again in 5-7 days after last exposure or immediately if

While CDC continues to recommend a1 4-day quarantine for unvaccinated individuals who are close contacts of a person with

COVID-19, viral testing may also be used as Part of an option to shorten the quarantine period. Local public health authorities

masking until Day 14 may be less effective in preventing transmission of COVID-19 than the currently recommended 14-day

Guarantine, In jurisdictions with shortened quarantine options, workplaces with higher risk of SARS-CoV-2 introduction or

transmission, or with potential for greater negative impact if employees become infected SARS-Cov-2 (see Types of

workplaces below), can consider restricting unvaccinated workers from entering the workplace until 14 days after their

exposure,

Viral testing may also be considered for unvaccinated persons who might have been in close Contact with persons diagnosed

with COVID-19 in collaboration with the local health department if resources permit. A risk-based approach to testing possible

contacts of a person with contirmed COVID-19 may be applied, Such an approach should take into consideration the

of a strategy to control the transmission of SARS-CoV-2 in the workplace, Employers are encouraged to consult with state,

local, territorial, and tribal health departments to help inform decision-making about expanded screening testing.

contact with coworkers

° Workplaces where employees live in congregate settings (e.g., fishing vessels, offshore oil platforms, farmworker

housing, or wildland firefighter camps)

workplace wnile maintaining conniaenuality OT the Inaividual WITN LUVID-1y, aS required by the AVA L4 ana consistent with

EEOC guidance regarding What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

4.

Testing to determine resolution of infection

The decision to end isolation and return to the workplace for employees with suspected or confirmed SARS-CoV-2 infection

should be made in the context of clinical and local circumstances. NAATs have detected SARS-CoV-2 RNA in some recovered

people's respiratory specimens for up to 3 months after illness onset but without direct evidence that virus that can replicate

or cause disease, Consequently, evidence supports a time-based and symptom-based strategy to determine when to

discontinue isolation or other precautions rather than a test-based strategy. For persons who are severely

immunocompromised, a test-based strategy could be considered in consultation with infectious disease experts. For all

others, a test-based strategy is no longer recommended.

Under the ADA, employers are permitted to require a healthcare provider's note 4 to verify that employees are healthy and

able to return to work. However, as a practical matter, employers should be aware that healthcare provider offices and

medical facilities may be extremely busy during periods when community COVID-19 indicators are in the moderate to high

categories (Table 2) and may not be able to provide such documentation in a timely manner. In such cases, employers should

consider not requiring a healthcare provider's note for employees who are sick to validate their illness, qualify for sick leave,

or to return to work. Most people with COVID-19 have mild illness, can recover at home without medical care, and can follow

CDC recommendations to determine when to discontinue isolation and return to the workplace.

Screening testing

Testing asymptomatic persons without known or suspected exposure to

SARS-CoV-2 for early identification, isolation, and disease prevention

When to consider screening testing

Screening testing in non-healthcare settings of unvaccinated workers without known or suspected exposure to SARS-CoV-2

may be useful to detect COVID-19 early and stop transmission quickly, particularly in areas with community COVID-19

indicators in the moderate to high categories (Table 2, Table 3). Screening testing can be used in addition to symptom and

temperature checks, which will miss asymptomatic or pre-symptomatic contagious workers. Persons with asymptomatic or

pre-symptomatic SARS-CoV-2 infection are significant contributors to SARS-CoV-2 transmission.

In general, fully vaccinated workers should continue to follow employer guidance on screening testing.

Types of workplaces

Workplace settings for which screening testing of unvaccinated, asymptomatic workers should be considered include:

e Large workplaces

¢ Workplaces at increased risk of introduction of SARS-CoV-2 (e.g., workplaces where workers are in close contact with the

public, such as restaurants or salons, or workplaces in communities with moderate to high transmission)

¢ Workplaces where there is a higher risk of SARS-CoV-2 transmission (e.g., workplaces where physical distancing is

difficult and workers might be in close contact, such as manufacturing or food processing plants, or workplaces that

provide congregate housing for employees such as fishing vessels, offshore oil platforms, farrmworker housing or

wildland firefighter camps)

¢ Workplaces where SARS-CoV-2 infection among employees will lead to greater negative impact, such as

- Workplaces in remote settings where medical evaluation or treatment may be delayed

- Workplaces where continuity of operations is a high priority (e.g., critical infrastructure sectors [4 )

- Workplaces with a high proportion of employees at increased risk for severe illness

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Approaches may include initial testing of all workers before entering a workplace, periodic testing of workers at regular

intervals, targeted testing of new workers or those returning from a prolonged absence (such as medical Jeave or furlough), or

some combination of approaches. Given the incubation period for COVID-19 (up to 14 days), CDC recommends conducting

screening testing of unvaccinated, asymptomatic workers without known or suspected exposures at least weekly. Employers

may find the following factors helpful to consider when determining the interval for periodic testing:

° The availability of testing, turnaround time, and cost

¢ The latency time period between exposure and development of a positive SARS-CoV-2 viral test

© Type of workplace

e Level of community transmission (Table 2, Table 3)

e Number of employees who tested positive during previous rounds of testing

e Relevant experience with outbreaks at the workplace

Serial testing used in a screening program could identify workers with SARS-CoV-2 infection, and thus help prevent or reduce

further transmission, which is an occupational health measure of great importance in the types of workplaces mentioned

above. Outbreak prevention and control is increasingly being thought to depend largely an the frequency of testing and the

speed of reporting (an advantage of antigen tests) and is only marginally improved by the higher test sensitivity of NAATS.

Serial testing, if implemented, should be integrated as a component of the comprehensive workplace program and not a

substitute for other measures, such as COVID-19 vaccination, physical distancing, mask wearing, hand hygiene, and cleaning

and disinfection. Engineering controls and improved ventilation in settings such as office buildings and schools are also

important.

Interpretation of screening SARS-CoV-2 test results

For screening testing, some antigen test results should be considered presumptive (preliminary results). A positive antigen

screening test result should be considered presumptive when the pretest probability (likelinoad that the person being tested

actually has the infection) for COVID-19 is low for the purpose of making a clinical diagnosis (e.g., a worker who is

asymptomatic and has no known exposures to COVID-19 within the last 14 days, is fully vaccinated, or has had a SARS-CoV-2

infection in the last 3 months). Please see Evaluating the Results of Antigen Testing for SARS-CoV-2.

Asymptomatic employees who have a positive antigen screening test and need a confirmatory NAAT should not come to work

and should quarantine during confirmatory testing. For confirmatory testing, CDC recommends using a laboratory-based

NAAT that has been evaluated against the FDA reference panel for analytical sensitivity. See FDA’s SARS-CoV-2 Reference

Panel Comparative Data 4.

NAATs that generate presumptive results are not appropriate for use in confirmatory testing.

Employees with a positive confirmatory NAAT result should isolate at home. A negative confirmatary NAAT result is

interpreted as na evidence of SARS-CoV-2 infection at the time when the testing sample was collected. Employees who test

negative should continue to take steps to protect themselves and others.

State, local, territorial, and tribal health departments may be able to provide assistance on any local context or guidance

impacting the workplace. Before testing a large proportion of asymptomatic workers without known or suspected exposure,

employers are encouraged to have a plan in place for how they will ensure access to clinical evaluation and confirmatory

testing when needed, ensure test results are reported to public health departments, modify operations based on test results,

collaborate with public health departments in workplace case investigation and contact tracing, and manage a higher risk of

false positive results in a low prevalence population.

Table 2. Level of Community Transmission

Low Moderate Substantial High

Indicator Transmission Transmission Transmission Transmission

Low Moderate Substantial High

Indicator Transmission Transmission Transmission Transmission

Cumulative number of new cases per 100,000 <10 10-49 50-99 2100

persons within the last 7 days*

Percentage of NAATs that are positive during <5% 5%-7.9% 8%-9.9% 210.0%

the last 7 days”

Indicators should be calculated for counties or core based statistical areas, although in rural areas with low population

density, multiple jurisdictions might need to be combined to make the indicators more useful for decision-making. The

indicators listed can be found by county on CDC’s COVID-19 Integrated County View.

* Number of new cases tn the county (or other administrative level) in the last 7 days divided by the population in the county

(or other administrative level) and multiplying by 100,000.

* Number of positive tests in the county (or other administrative level) during the last 7 days divided by the total number of

tests resulted in the county (or other administrative level) during the last 7 days. Calculating Severe Acute Respiratory

Syndrome Coronavirus 2 (SARS-CoV-2) Laboratory Test Percent Positivity: CDC Methods and Considerations for Comparisons

and Interpretation.

Table 3. Potential Actions Based on Community Transmission Level

Low Moderate Substantial High

Transmission Transmission Transmission Transmission

Prevention Strategy (Blue) (Yellow) (Orange) (Red)

Facilitate diagnostic testing for symptomatic

persons and all close contacts of cases

Facilitate diagnostic testing for symptomatic

persons and all close contacts of cases

Implement screening testing of select groups

at least weekly ptus facilitate diagnostic testing

of symptomatic persons and close contacts

Implement screening testing of select groups

at least weekly plus facilitate diagnostic testing

of symptomatic persons and close contacts

References

1. Chin ET, Huynh BQ, Chapman LAC, Murrill M, Bash S, Lo NC. Frequency of routine testing for Coronavirus Disease 2019

(COVID-19) in high-risk healthcare environments to reduce outbreaks. Clin Infect Dis: 26 October 2020.

https://doi.org/10.1093/cid/ciaa1383 4

2. Denny TN, Andrews L, Bonsignori M, Cavanaugh K, Datto MB, Deckard A, DeMarco CT, DeNaeyer N, Epling CA, Gurley T,

Haase SB, Hallberg C, Harer J, Kneifel CL, Lee Mj, Louzao R, Moody MA, Moore Z, Polage CR, Puglin J, Spotts PH, Vaughn

JA, Wolfe CR. Implementation of a pooled surveillance testing program for asymptomatic SARS-CoV-2 infections on a

college campus — Duke University, Durham, North Carolina, August 2-October 11, 2020. MMWR Morb Mortal Wkly Rep

2020;69(46):1743-1747. https://doi.org/10.15585/mmwr.mm6946e1 [4

3. Grassley NC, Pons-Salort M, Parker EPK, White Pj, Feruson NM; Imperial College COVID-19 Response Team. Comparison

of molecular testing strategies for COVID-19 control: a mathematical modelling study. Lancet Infect Dis 2020;

20(12):1381-1389. https://doi.org/10.1016/S1473-3099(20)30630-7

4. Kucirka LM, Lauer LA, Laeyendecker O, Boon D, Lessler J. Variation in false-negative rate of reverse transcriptase

polymerase chain reaction-based SARS-COV-2 tests by time since exposure. Ann Int Med 2020;173(4):262-

267. https://doi.org/10,7326/M20-1495 [4

5. Larremore DB, Wilder B, Lester E, Shehata S, Burke JM, Hey JA, Tambe M, Mina MJ, Parker R. Test sensitivity is secondary

to frequency and turnaround time for COVID-19 screening. Sci

Adv 2021;7(1):eabd5393. https://doi.org/10,1126/sciadv.abd5393 [4

Previous Updates

Updates from Previous Content “A

Updates as of March 17, 2021

e Added description of nucleic acid amplification tests (NAATs) and antigen tests as types of viral tests to align with

the Overview of Testing for SARS-CoV-2.

e Added considerations on incorporating testing of asymptomatic individuals without known or suspected exposure

to SARS-CoV-2 (screening testing) in select workplace settings as part of a workplace COVID-19 prevention and

control plan.

e Updated considerations on frequency of testing.

Updates as of October 21, 2020

e Added links to the updated close contact definition.

e Updated language to align with updated definition.

Last Updated Oct. 5, 2021

3/30/22, 9:28 AM What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws [ U.S. Equat Emplayment Op.,

3) U.S. Equal Employment Opportunity Commission

What You Should Know About

COVID-19 and the ADA, the

Rehabilitation Act, and Other

EEO Laws

INTRODUCTION

Technical Assistance Questions and Answers - Updated on March 14, 2022.

e All EEOC materials related to COVID-19 are collected at

www.eeoc.gov/coronavirus (https://www.eeoc.gov/coronavirus) .

° The EEOC enforces workplace anti-discrimination laws, including the

Americans with Disabilities Act (ADA) and the Rehabilitation Act (which include

the requirement for reasonable accommodation and non-discrimination based

on disability, and rules about employer medical examinations and inquiries),

Title Vit of the Civil Rights Act (which prohibits discrimination based on race,

color, national origin, religion, and sex, including pregnancy), the Age

Discrimination in Employment Act (which prohibits discrimination based on

age, 40 or older), and the Genetic Information Nondiscrimination Act. Note:

Other federal laws, as well as state or local laws, may provide employees with

additional protections.

° Title! of the ADA applies to private employers with 15 or more employees. It

also applies to state and local government employers, employment agencies,

and labor unions. All nondiscrimination standards under Title t of the ADA also

apply to federal agencies under Section 501 of the Rehabititation Act. Basic

background information about the ADA and the Rehabilitation Act is available

hilps/www.eeoc. goviwysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#A.2 47

3/30/22, 9:28 AM

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Op..

on EEOC's disability page (https://www.eeoc.gov/disability-discrimination)

The EEO laws, including the ADA and Rehabilitation Act, continue to apply

during the time of the COVID-19 pandemic, but they do not interfere with or

prevent employers from following the guidelines and suggestions made by

the CDC or state/local public health authorities

(https://www.cde.gov/coronavirus/2019-

ncov/community/organizations/businesses-employers. html) about steps

employers should take regarding COVID-19. Employers should remember that

guidance from public health authorities is likely to change as the COVID-19

pandemic evolves. Therefore, employers should continue to follow the

most current information on maintaining workplace safety. This includes

evolving guidance found in the CDC publication, “Interim Public Health

Recommendations for Fully Vaccinated People

(https://www.cde.gov/coronavirus/2019-ncov/vaccines/fully-vaccinatedguidance.html} ." Many common workplace inquiries about the COVID-19

pandemic are addressed in the CDC publication “General Business Frequently

Asked Questions (httns://www.cdc, gov/coronavirus/2019-

ncov/community/general-business-fagq.html)_.”

The EEOC has provided guidance (a publication entitied Pandemic

Preparedness in the Workplace and the Americans With Disabilities Act

(https://www. eeoc.gov/laws/guidance/pandemic-preparedness-

(https://www.eeoc, gov/sites/default/files/2020-04/pandemic_flu.pdf)_])

("Pandemic Preparedness"}, consistent with these workplace protections and

rules, that can help employers implement strategies to navigate the impact of

COVID-19 in the workplace. This pandemic publication, which was written

during the prior HIN1 outbreak, is still relevant today and identifies established

ADA and Rehabilitation Act principles to answer questions frequently asked

about the workplace during a pandemic. It has been updated as of March 19,

2020 to address examples and information regarding COVID-19; the new 2020

information appears in bold and is marked with an asterisk.

On March 27, 2020 the EEOC provided a webinar ("3/27/20 Webinar") which was

recorded and transcribed and is available at www.eeoc.gov/coronavirus

(bttps://www.eeoc.gov/coronavirus).. The World Health Organization (WHO)

has declared COVID-19 to be an international pandemic. The EEOC pandemic

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330/22, 9:28 AM What You Should Know About COVIO-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Op...

publication includes a separate section

(https://www.eeoc.gov/laws/guidance/pandemic-preparednessworkplace-and-americans-disabilities-act#isecB) that answers common

employer questions about what to do after a pandemic has been declared.

Applying these principles to the COVID-19 pandemic, the following may be

useful:

A. Disability- Related Inquiries and

Medical Exams

The ADA hos restrictions on when and how much medical information an employer

may obtain from any applicant or employee. Prior to making a conditional job offer to

on applicant, disability-related inquiries and medical exams are generally prohibited.

They are permitted between the time of the offer and when the applicant begins work,

provided they are required for everyone in the same job category. For more

information on the timing of disability-related inquiries and medical examinations for

applicants, see Section C, Once an employee begins work, any disability-related

inquiries or medical exams must be job related and consistent with business

necessity. For information on disability-related questions and COVID-19 vaccinations,

see K.7.- K.9.

A.1. How much information may an employer request from an employee who

calls in sick, in order to protect the rest of its workforce during the COVID-19

pandemic? (3/17/20)

During a pandemic, ADA-covered employers may ask such employees if they are

experiencing symptoms of the pandemic virus. For COVID-19, these include

symptoms such as fever, chills, cough, shortness of breath, or sore throat.

Employers must maintain all information about employee illness as a confidential

medical record in compliance with the ADA.

A.2. When screening employees entering the workplace during this time, may

an employer only ask employees about the COVID-19 symptoms EEOC has

identified as examples (https://www.eeoc.gov/transcript-march-27-2020-

outreach-webinari#q1) , or may it ask about any symptoms identified by public

health authorities as associated with COVID-19? (4/9/20)

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