On September 9, 2021, President Biden signed a new Executive Order requiring federal contractors and subcontractors to provide adequate COVID-19 safeguards for individuals working on or in connection with a federal government contract. The Executive Order is just one part of the Biden Administration's extensive and multi-pronged Path Out of the Pandemic COVID Action Plan ("Action Plan"). (Notably, as part of the Action Plan, the Administration also announced on September 9 that the Department of Labor's Occupational Safety and Health Administration (OSHA) will require all private employers with 100 or more employees either to ensure their workforce is fully vaccinated or require unvaccinated workers to produce negative test results on at least a weekly basis. See our September 10, 2021 Legal Alert for more information.) Previously, in July 2021, President Biden announced that as part of the Action Plan, federal employees and onsite federal contractors would be required to attest to their vaccination status, and anyone who is unvaccinated must take additional cautionary measures, such as compliance with weekly or twice weekly COVID screening. The Executive Order signed on September 9 is broader than the executive action in July and applies to more contractors than onsite federal contractors.
Applicability of the New Executive Order:
The new Executive Order applies to new contracts, new solicitations for contracts, extensions or renewals of existing contracts, and exercise options of an existing contract, if:
- It is a procurement contract for services, construction, or a leasehold interest in real property;
- It is a contract for services covered by the Service Contract Act, 41 U.S.S. 6701;
- It is a contract for concessions; or
- It is a contract entered into 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.
COVID-19 Safety Protocol Clause
The Executive Order imposes no instant workplace requirements. Instead, by September 24, 2021, the Safer Federal Workforce Task Force will issue guidance regarding the COVID-19 safety protocols federal contractors must implement ("Task Force Guidance"). The Task Force Guidance will provide definitions of relevant terms for contractors and subcontractors; explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance; and any exceptions to Task Force Guidance. Once the Task Force Guidance has been issued, federal contractors and subcontractors must incorporate a clause that specifies the contractor or subcontractor (at any tier) will, for the duration of the contract, comply with the Task Force Guidance. This COVID-19 Safety Protocol clause will apply to any workplace location at which an individual is working on or in connection with a federal government contract.
The Executive Order applies to new contracts, new solicitations for contracts, extensions or renewals of existing contracts, and exercise options of an existing contract that will be entered into on or after October 15, 2021. There are a few exceptions to the Executive Order. For new contracts that result from a solicitation before October 15 and are entered into within 30 days of the October 15 effective date, federal agencies are strongly encouraged to ensure the COVID-19 safety protocols are followed. Likewise, for all existing contracts whose solicitations have been issued between September 9 and October 15, federal agencies are strongly encouraged to ensure that the COVID-19 safety protocols are followed.
Federal Acquisition Regulation
For federal contracts and solicitations subject to the Federal Acquisition Regulation (FAR), the Federal Acquisition Regulatory Council will amend the FAR by October 8, 2021 to require the COVID-19 safety protocol clause to be included in covered contracts.
At this point, the required COVID-19 safety protocols are yet to be determined and much remains uncertain. Further, it is likely the Executive Order will be subject to legal challenges. Although it is not entirely certain whether federal contractors will be required to mandate COVID vaccines, considering the Biden Administration's Action Plan, federal contractors and subcontractors should begin preparing for the possibility. Contractors are encouraged to review their current contracts to determine whether and when they will be subject to the new Executive Order, as well as the matrix of state and federal laws and orders that may create vaccination requirements for their workforce. Contractors should also begin reviewing and updating, as necessary, their current vaccination and COVID protocols and any vaccination verification or recordkeeping processes they may have in place, or may require going forward. It will also be important for contractors to refresh their understanding of privacy requirements under the Americans with Disabilities Act and think through the process they will implement for vaccine-related accommodation requests that comply both with the ADA and the provisions of the Executive Order and any other relevant and applicable state or federal law or rule.
We will continue to provide updates as more information and guidance is issued relating to the Executive Order.
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