By Madison Plummer and Alan Chvotkin

September 17, 2021

President Biden announced a six-point action plan on September 9 to combat the recent surge of COVID cases resulting from the highly contagious Delta variant.  The President issued two Executive Orders (“EO”), among other actions, that mandate new COVID-19 health and safety protocols for both federal government employees and contractors.  The EOs range widely in application and coverage, and delegate much responsibility for issuing the implementing guidance to the Safer Federal Workforce Task Force (“Task Force”).

What do the Executive Orders entail?

Executive Order 14043: Requiring Coronavirus Disease 2019 Vaccination for Federal Employees mandates COVID-19 vaccination for all federal employees, subject to such exceptions as required by law (e.g., religious, health, etc.).  The White House determined mandatory vaccination as the most effective way to promote the health and safety of the Federal workforce following both research and guidance from the Centers for Disease Control and Prevention (CDC) and recent vaccine approval from the Food and Drug Administration (FDA).  However, this EO only applies to employees as defined by 5 U.S.C. § 2105, and as such, federal contractors are not covered by this mandate.

Must federal government contractors mandate employee vaccination?

Executive Order 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors requires federal contractors to implement a host of COVID-19 safeguards in connection with a federal government contracts or contract-like instruments.  As of now, federal contractors will be required to conform to the following protocols:

  1. Vaccination of covered federal contractor employees;
  2. Compliance by covered contractor employees with the Task Force’s requirements related to masking and physical distancing while in covered worksites; and
  3. Designation by contractors of a person(s) to coordinate COVID-19 workplace safety efforts at covered worksites.

The specifics of these protocols remain unclear until the Task Force publishes definitions of terms, explanations of the protocols, and exceptions, which is expected by September 24, 2021.

Although the EO covering Federal Contractors does not mention a vaccine mandate per se, OMB’s Deputy Director for Management, Jason Miller, announced that the Task Force will mandate vaccines for covered federal contractor employees to align with the policy and mandate covering federal employees.  In addition, guidance issued by the Task Force on September 16 for Federal employees suggests that agencies consider incorporating similar requirements for on-site contractor employees, and for all contracts even in advance of the directed effective date of the contract clause.

What remains certain is the enforceability, extent, and application of these safeguards within government contracts.

  • Enforceability – The EO prescribes a contract clause to be incorporated into all contracts. The clause specifies that contractors and subcontractors will, for the duration of the contract, comply with all guidance promulgated by the Task Force. The clause applies to any workplace locations in which an individual is working on or in connection with a federal government contract or contract-like instrument. See Section 2(a) (emphasis added); this phrase is taken from the scope of coverage of the federal contractor minimum wage requirement.
  • Extent – The clause will impact not only prime contractors but must also flow down to any subcontractors at any tier. See Section 2(a).
  • Application – Effective October 15, 2021, the EO covers any new contract, new contract-like instrument, new solicitation, extension/renewals, or exercise of an option year, but is limited in its application. For the most part, the EO covers services and property, but not the manufacture or supply of goods. See Section 5(a)–(b).

Specifically, the EO covers procurements for: (i) services, construction, or a leasehold interest in real property; (ii) services covered by the Service Contract Act; (iii) concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); or (iv) the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the public.  Explicitly, the EO does NOT cover: (i) grants; (ii) contracts or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act; (iii) procurements equal to or less than the simplified acquisition threshold (“SAT”); (iv) employees who perform work outside the United States or its outlying areas; or (v) subcontracts solely for the provision of products.

While the EO is not retroactive, for existing contracts, “agencies are strongly encouraged, to the extent permitted by law, to ensure that the safety protocols required under those contracts . . . are consistent with the requirements specified in . . . this order.”  Section 6(c).

In addition to the guidance in the Task Force’s protocols, many federal contractors likely will be impacted by a forthcoming Department of Labor’s Occupational Health and Safety Administration (OSHA) regulation.  As part of his six-point plan, President Biden directed OSHA to promulgate a rule that will require employers of 100 or more employees either to (1) mandate full vaccination or (2) require weekly negative tests for unvaccinated employees.  OSHA will likely implement an Emergency Temporary Standard to effectuate this plan.  The regulation is expected to impact over 80 million workers in the private sector.

How should federal contract employers go about a vaccine mandate?

The U.S. Equal Employment Opportunity Commission has comprehensive guidance on its website relating to the intersection of COVID-19 and federal employment law.  Even if a federal contractor is exempt from the EO vaccine mandate, it may still want to institute an internal policy mandating vaccines to promote the general health and welfare of its workforce.  As such, federal laws do not prevent an employer from implementing mandatory COVID-19 vaccine policies, subject to reasonable accommodations (e.g., disability, religious beliefs, pregnancy).  Reasonable accommodations include but are not limited to, masking mandates, social distancing, regular COVID testing, and even, reassignment.  Employers should also check local state employment laws for additional requirements.

How should federal contractors move forward?

  • Check the dates of current bids and solicitations to determine if and when the new contract clause will apply to your bids, proposals, and/or new contracts.
    • Between 10/15/2021 and 11/14/2021 – solicitations released during this time will include the new contract clause; contracts awarded may include the new clause.
    • After 11/14/2021 – all contracts will include the clause.
  • Begin discussions with government counterparts on existing contracts to determine if any amendments need to be made.
  • Develop an internal compliance plan to account for and monitor COVID safety.
  • Implement vaccination tracking for all employees and develop contingency plans for employees to get vaccines and/or COVID testing, or who may qualify for an exemption.
  • Work with counsel to understand what, if any, reasonable accommodations must be made for employees under Title VII of the Civil Rights Act, the Americans with Disabilities Act, and other anti-discrimination laws.
  • Monitor for new guidance often.

Dates to Notice:

  • September 9, 2021 – Executive Orders effective immediately.
  • September 24, 2021 – Safe Federal Workforce Task Force to publish definitions of terms, explanations of protocols, and exceptions and announce draft clause referenced in EO Section 2(a).
  • October 8, 2021 – Federal Acquisition Regulation (“FAR”) Council to take initials steps to implement policy direction to government acquisition offices under the authority in FAR 1.4 to include the required contract clause. Expect an interim FAR amendment effective no later than October 15.
  • October 15, 2021 – Section 2(a) Clause required to be included in covered contracts.

Nichols Liu will be carefully monitoring evolving developments and will update this information as it becomes available.

For any questions, please contact the authors or the Nichols Liu attorney with you regularly work.