This post was updated on December 1, 2021, to note litigation pending in federal court that is blocking enforcement of the federal contractor vaccine mandate in some states.
In furtherance of his “Path Out of the Pandemic: COVID-19 Action Plan,” President Biden issued Executive Order 14042, which imposes COVID-19 vaccination and workplace safety requirements on federal contractors. Contractors who do business with the federal government should be aware of this federal mandate because it is likely to impose significant obligations with respect to requiring that employees be vaccinated for COVID-19 and implementing certain COVID-19 safety measures in the contractor’s workplace.
Please note that the following information relates only to the Executive Order federal contractor mandate. It does not summarize or relate to the U.S. Department of Labor’s Occupational Safety and Health Administration’s (“OSHA”) emergency temporary standard (“ETS”) issued on November 4, 2021, relating to employers with 100 or more employees. Due to ongoing litigation, OSHA has announced it is “suspend[ing] activities related to the implementation and enforcement of the ETS.” The stay of the OSHA ETS does not affect implementation of the federal contractor mandate.
On September 9, 2021, President Biden’s administration issued Executive Order 14042: “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors.” Executive Order 14042 is intended to promote “economy and efficiency in Federal procurement by ensuring that the parties that contract with the Federal Government provide adequate COVID-19 safeguards to their workers performing on or in connection with a Federal Government contract or contract-like instrument.”
At the heart of Executive Order 14042 is the requirement that, effective October 15, 2021, all contracts and “contract-like instruments” with federal departments and agencies shall include language requiring 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 …”
This contract language must be included in (a) all new federal contracts and solicitations issued on or after October 15, 2021, and (b) extensions or renewals of existing federal contracts and options on existing contracts exercised on or after October 15, 2021, where the contracts are: (i) procurement contracts for services and construction, (ii) contracts covered by the Service Contract Act, 41 U.S.C. 6701 et seq., (iii) contracts for concessions, including concessions contracts excluded by Department of Labor regulations at 29 C.F.R. 4.1333(b), or (iv) contracts with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public. With respect to new federal contracts awarded on or after November 14, 2021, from solicitations issued before October 15, 2021, the federal agency may elect to require compliance with the Safer Federal Workforce Task Force Guidance (“Task Force Guidance”). Note that according to the express language of Executive Order 14042, if a contract is awarded before October 15, 2021, but is subsequently extended or renewed, the Task Force Guidance shall apply to that contract.
The mandated contract language must be incorporated into prime contracts and subcontracts of any tier, such that all contractors and subcontractors working on or in connection with a federal government contract are bound to comply with the Task Force Guidance. The Executive Order does not make inclusion of this contract language mandatory for: (i) grants, (ii) contracts or subcontracts entered into prior to October 15, 2021 (unless extended or renewed), (iii) contracts or subcontracts with a value equal to or less than the $250,000 Simplified Acquisition Threshold per section 2.101 of the Federal Acquisition Regulations (48 C.F.R. § 2.101), or (iv) subcontracts solely for the provision of products. Notwithstanding these exclusions, the Executive Order “strongly encourage[s]” federal agencies to ensure that the COVID-19 safety protocols called for by the Executive Order are applied to existing contracts and solicitations. In addition, the Task Force Guidance “strongly encourages” federal agencies to incorporate the Executive Order contract language into non-mandatory contracts, such as those under the FAR Simplified Acquisition Threshold or subcontracts solely for the provision of products.
The Task Force Guidance, as modified by the Biden administration’s November 4, 2021, announcement, mandates that all contractors and subcontractors with a federal contract subject to the Executive Order (“covered contract”) must:
- Require and ensure that all employees are fully vaccinated for COVID-19 by January 18, 2022, except in limited circumstances where the employee is entitled to an accommodation due to a disability/medical condition or sincerely held religious belief. All employees of a contractor with a covered contract must be fully vaccinated for COVID-19, unless an employee is legally entitled to an accommodation. In some cases, medical considerations may entitle an employee to an extension of vaccination deadlines. It is the contractor’s responsibility to determine whether an employee is legally entitled to an accommodation or an extension of the vaccination deadline, and it is the contractor’s responsibility to require proof of vaccination from its employees. Note that the Task Force Guidance does not provide the option for COVID-19 testing in lieu of vaccination. Furthermore, while contractors that are not currently a party to a covered contract need not require that all employees be fully vaccinated by January 18, 2022, should a contractor later become a party to a new, renewed, or extended covered contract, all contractor employees would be required to become fully vaccinated by the first day of the period of performance of the new, renewed, or extended contract.
- Require and ensure compliance by all employees and workplace visitors with the CDC’s guidance for masking and physical distancing. Contractors with a covered contract must require that in workplaces located in areas of “high or substantial community transmission,” fully vaccinated employees and visitors wear a mask indoors except where an exception applies. In areas of “low community transmission,” fully vaccinated individuals are not required to wear masks. There is never a physical distancing requirement for individuals who are fully vaccinated. Contractors are required to ensure that individuals who are not fully vaccinated, however, such as those who were granted a medical or religious accommodation, wear a mask indoors and in certain outdoor settings regardless of the level of community transmission in the area, and, to the extent practicable, maintain a physical distance of at least 6 feet from others. Contractors must monitor individuals in the workplace to ensure masks are worn when required, and masks are worn correctly and consistently. Like with the vaccination requirement, it is the contractor’s responsibility to determine whether an employee is legally entitled to an accommodation due to a medical condition or sincerely held religious belief. Furthermore, it is the contractor’s responsibility to monitor the level of community transmission in all areas where the contractor has a workplace and adjust its COVID-19 safety protocols accordingly.
- Designate a person or persons to coordinate COVID-19 workplace safety efforts at the workplace. Contractors with a covered contract shall designate one or more individuals responsible for implementing the Guidance and any additional COVID-19 workplace safety protocols required by any level of government. It shall be that individual’s responsibility to communicate and display required workplace safety protocols and policies to all individuals present at the workplace(s), as well as to require the showing or provision of proof of COVID-19 vaccination status.
Importantly, the Task Force Guidance protocols apply to all covered contractor and subcontractor employees, including office staff and those who are not themselves working on or in connection with the federal government contract. This includes part-time employees and employees who work remotely or primarily outdoors.
Finally, as directed by the Executive Order, the Federal Acquisition Regulatory Council has developed a clause for inclusion in federal procurement solicitations and contracts. Consistent with the Executive Order, this clause directs that contractors and subcontractors working on or in connection with a federal government contract are bound to comply with the Task Force Guidance. The Federal Acquisition Regulatory Council has issued initial policy direction to acquisition offices for use of the clause.
UPDATE (December 1, 2021): On November 30, 2021 – after the initial publication of this blog post – the U.S. District Court for the Eastern District of Kentucky stayed the federal contractor vaccine mandate with respect to covered federal contracts in Kentucky, Ohio, and Tennessee. While the federal government is presently enjoined from enforcing the federal contractor vaccine mandate in only these three states, similar challenges are pending in other federal courts, and it is likely that there will be further legal developments with respect to the federal contractor mandate.
The federal contractor mandate is complex, and this blog post provides only a brief summary of some of the highlights of the mandate. If you need assistance determining whether the federal contractor mandate requirements apply to your company, or need assistance in taking steps toward compliance, please contact an attorney in Greensfelder’s Construction Industry Group.