FAR 22.2104—Exclusions.
Plain-English Summary
FAR 22.2104 explains when the paid sick leave requirements in this subpart do not apply, or do not apply immediately, even though the underlying Executive Order and implementing regulations generally require covered federal contractors to provide paid sick leave. It addresses three specific exclusion areas: employees who spend less than 20 percent of their work hours in a workweek on covered contract work, certain employees covered by a qualifying collective bargaining agreement ratified before September 30, 2016, and the effect of a Government unilateral option exercise on whether the clause at 52.222-62 is triggered. In practice, this section is about identifying which workers are outside the rule, which workers are temporarily grandfathered under existing labor agreements, and when a contract action does or does not create a new obligation to flow in the paid sick leave clause. Contractors must use these exclusions carefully because they are narrow, fact-specific, and tied to workweek-by-workweek status, agreement dates, and contract modification history. Contracting officers must understand these exclusions to avoid incorrectly requiring the clause or overlooking when it should be included. The section exists to prevent over-application of the paid sick leave mandate while preserving coverage for employees who are actually performing covered work.
Key Rules
Less-than-20-percent exclusion
Employees who spend less than 20 percent of their work hours in a given workweek performing in connection with covered contracts are excluded from coverage. However, this exclusion does not apply to employees directly engaged in performing the specific work required by a covered contract at any point during the workweek.
Collective bargaining agreement grandfathering
Employees whose covered work is governed by a collective bargaining agreement ratified before September 30, 2016, may be excluded until the earlier of the agreement’s termination date or January 1, 2020. This applies only if the agreement already provides 56 hours (or 7 days, if measured in days) of paid sick time or paid time off usable for sickness or health care, or if the contractor supplements a lesser benefit up to that amount each year.
Supplementation for lower CBA benefits
If the pre-September 30, 2016 collective bargaining agreement provides less than 56 hours (or 7 days), the contractor must provide the difference each year so the covered employees receive the full required amount. The exclusion is not a complete waiver; it is conditional on the contractor making up the shortfall.
Option exercise does not automatically trigger clause
The Government’s unilateral exercise of a pre-negotiated option to renew an existing contract does not automatically make the paid sick leave clause at 52.222-62 applicable if the contract did not already contain it. Whether the clause applies depends on the definition of a 'new contract' in the implementing regulations.
Coverage depends on regulatory definitions
The exclusions must be read together with the implementing Department of Labor regulations, especially the definitions and workweek rules in 29 CFR 13.2 and 13.4. Contractors and contracting officers cannot rely on the FAR text alone; they must apply the regulatory details to determine actual coverage.
Responsibilities
Contractor
Determine which employees are covered or excluded based on actual work performed in each workweek, the terms and dates of any collective bargaining agreement, and whether any supplemental sick leave must be provided. The contractor must also track whether a contract action is merely an option exercise or a new contract event that could trigger clause applicability.
Contracting Officer
Decide whether the clause at 52.222-62 should be included in the solicitation or contract, taking into account the exclusions in this section and the regulatory definitions. The contracting officer should not assume that every option exercise creates a new coverage obligation.
Agency
Apply the paid sick leave policy consistently across acquisitions, ensure contract language aligns with the applicable regulatory framework, and support contracting personnel in identifying when exclusions or grandfathering provisions apply.
Employees
Understand that coverage may depend on the amount and nature of covered work performed in a workweek and, for some workers, on the terms of a collective bargaining agreement. Employees should be aware that some benefits may come from the contractor’s supplemental obligation rather than the general rule.
Practical Implications
Coverage can change from week to week for employees who split time between covered and noncovered work, so contractors need reliable timekeeping and job coding.
The 20 percent exclusion is narrow and does not protect employees who directly perform covered contract work at any point in the workweek, which is a common source of misclassification.
Pre-September 30, 2016 collective bargaining agreements require careful review of both the ratification date and the sick leave/PTO benefit level; assuming all union employees are excluded is a mistake.
A unilateral option exercise is not automatically a 'new contract,' so contracting officers should verify clause applicability before adding 52.222-62 or assuming it carries over.
Because the exclusions are tied to DOL regulations, contractors should consult the implementing rules when determining coverage rather than relying on a simplified FAR-only reading.
Official Regulatory Text
The following are excluded from coverage under this subpart: (a) Employees performing in connection with contracts covered by the E.O. for less than 20 percent of their work hours in a given workweek. This exclusion is inapplicable to employees performing on contracts covered by the E.O., i.e., those employees directly engaged in performing the specific work called for by the contract, at any point during the workweek (see 29 CFR 13.4 (e)). (b) Until the earlier of the date the agreement terminates or January 1, 2020, employees whose covered work is governed by a collective bargaining agreement ratified before September 30, 2016, that- (1) Already provides 56 hours (or 7 days, if the agreement refers to days rather than hours) of paid sick time (or paid time off that may be used for reasons related to sickness or health care) each year; or (2) Provides less than 56 hours (or 7 days, if the agreement refers to days rather than hours) of paid sick time (or paid time off that may be used for reasons related to sickness or health care) each year, provided that each year the contractor provides covered employees with the difference between 56 hours (or 7 days) and the amount provided under the existing agreement in accordance with 29 CFR 13.4 (f). (c) The Government's unilateral exercise of a pre-negotiated option to renew an existing contract that does not contain the clause at 52.222-62 will not automatically trigger the application of that clause. (See definition of "new contract" at 29 CFR 13.2 ).