United States: President Biden Mandates COVID-19 Safety Measures For Government Contractors

Highlights

• President Joe Biden issued two Executive Orders (EOs) on Sept. 9, 2021, aimed at curtailing the ongoing COVID-19 pandemic.
• One EO requires certain government contractors to comply with COVID-19 safety protocols to be published by the Safer Federal Workforce Task Force (Task Force) before the end of the month.
• While the federal contractor EO itself does not require contractor employee vaccinations, it is anticipated that vaccination will be required for employees of contractors and their subcontractors working "on or in connection with" government contracts.

President Joe Biden issued two Executive Orders (EOs) on Sept. 9, 2021, aimed at curtailing the ongoing COVID-19 pandemic.

The first – Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees – requires COVID-19 vaccinations for federal employees, subject to exceptions required by law for medical conditions and religious beliefs.

The second – Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors – requires certain government contractors to comply with COVID-19 safety protocols to be published by the Safer Federal Workforce Task Force (Task Force) before the end of the month.

While the second EO itself does not require contractor employee vaccinations, it is anticipated that vaccination will be required for employees of contractors and their subcontractors working "on or in connection with" government contracts.

With respect to safety protocols, the EO requires that:

• a clause be inserted into every new contract or contract-like instrument (or at renewal, exercise of option or extension) requiring adherence to safety protocols created by the Task Force
• the clause be flowed down to lower-tier subcontracts
• by Sept. 24, 2021, the Task Force provide "definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance" along with any exceptions
• The director of the Office of Management and Budget review and, if appropriate, approve guidance issued by the Task Force and have such guidance published in the Federal Register.

Conclusion and Takeaways

The EO does not specify what the safety protocols will require. The Task Force presumably has a range of options at its disposal, including masking, social distancing and even vaccination requirements. Further, these requirements also do not just apply to federal worksites, but any worksite in which there are workers who are performing the work required in a government contract or working "in connection with" a government contract. The term "in connection with" is somewhat amorphous and includes workers who help support specific government contracts and spend at least 20 percent of their time doing so. Examples would be corporate employees who send out invoices for a contractor to the federal government or a security officer guarding a construction site. Neither of these employees are probably called for in the Statement of Work, but have jobs necessary for the proper performance of the contract. This would mean, for example, the corporate offices of contractors (and subcontractors) could be included in the safety protocol requirements.

Prior to the issuance of this guidance, the EO urges federal executive agencies to issue class deviations by Oct. 8, 2021, that would be applicable under the Federal Acquisition Regulation (FAR) Subpart 1.4.

As noted above, not every contract is covered by this EO. This EO is applicable to the following types of contracts, (or contract-like instruments):

• for "services, construction, or a leasehold interest in real property"
• for services covered by the Service Contract Act
• for the provision of concessions, and
• in connection with "federal property or lands and related to offering services for Federal employees, their dependents, or the general public"

The EO specifically excludes certain types of instruments including grants, contracts below the simplified acquisition threshold (which is currently $250,000), subcontracts solely for the provision of products, and is inapplicable to employees working outside the United States or its outlying areas. Interestingly, prime contracts for the provision of products do not seem to be included or excluded by the scope of the EO.

Notably, however, President Biden also has directed the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) implementing vaccination or testing requirements for all U.S. businesses with 100 or more employees. As such, even contractors who are excluded from the EO's coverage should determine whether they may still have to comply with the ETS.

This EO is the first step in a short but dramatic process by the federal government to institute new policies aimed at curbing the COVID-19 pandemic and will likely, in the near future, lead to vaccine mandates for certain contractor employees.