As a follow up to our previous article, President Biden has renewed efforts to require COVID-19 vaccinations for federal workers and contractors who do business with the federal government.
On Sept. 9, 2021, the President issued two Executive Orders (EO). The first requires that all federal government employees be vaccinated unless an exception applies. The second concerns federal contractors.
The purpose of the EO applicable to federal contractors is to promote economy and efficiency in federal procurement by contracting with sources that provide adequate COVID-19 safeguards to their workforce. The “safeguards,” which are not defined by the EO, “will decrease the spread of COVID-19, which will decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors at sites where they are performing work for the Federal Government.”
The EO directs all federal executive departments and agencies to include a contract clause in all contracts which will require compliance with final guidance to be issued by the Safer Federal Workforce Task Force (the guidance). The clause will specify that the contractor or subcontractor (at any tier) must comply with all published guidance for contractor or subcontractor workplace locations, for the duration of the contract. This guidance is to be issued no later than Sept. 24, 2021, and will provide definitions of relevant terms, explanations of protocols that will be required for federal contractor and subcontractor employees, and any exceptions thereto. As written, this EO applies to “any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal contract or contract-like instrument.” In other words, it appears to apply to all federal contractor employees, not just those situated on-site at a federal facility as specified in the previously issued Model Safety Principles. However, it is possible the final guidance will exclude those sites in the exceptions.
The most important takeaway from the EO is that it only applies to new contracts, solicitations, contract extensions or renewals, and option periods that are issued or exercised after Oct. 15, 2021. For all currently existing contracts, agencies are encouraged to take action, as permitted by law, to ensure compliance with the final guidance. As a result, this will not have an immediate impact.
Note that the EO does not apply to grants, contracts with Indian Tribes, employees performing work outside the U.S., subcontracts solely for the provision of products, and contracts or subcontracts valued at or below the Simplified Acquisition Threshold (i.e., $250,000).
The EO also requires that the FAR Council take initial steps for the implementation of a policy directive for agencies no later than Oct. 8, 2021. The drafting of a new FAR clause will likely be the eventual outcome of this EO.
Also announced during the President’s speech, and in his “Path out of the Pandemic” Action Plan, is the forthcoming OSHA Emergency Temporary Standard (ETS) which will apply to all businesses with 100 or more employees. This ETS is expected to require employers with 100+ employees to mandate all employees be vaccinated or produce a negative COVID-19 test at least once per week prior to being permitted to report to work. Like the EO applicable to federal contractors, there are not currently many details available about the impending ETS from the Department of Labor or OSHA. Learn more about the ETS in an article published by Taft’s Employment Law group here.
Taft’s Government Contracts and Employment Law practice groups are closely monitoring this situation and will publish updates when further developments, like the final guidance, are available.
Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.