In connection with his Path
Out of the Pandemic ("Plan") six-point national
strategy unveiled on September 9, 2021, President Biden issued 2
Executive Orders:
1) Executive Order on Requiring Coronavirus Disease 2019
Vaccination for Federal Employees; and
2) Executive Order on Ensuring Adequate COVID Safety Protocols
for Federal Contractors
These Orders are in addition to the Administration's
announcement to require businesses with at least 100 employees to
mandate vaccinations or require weekly testing. You can read our
analysis on the entire Path Out of the Pandemic Plan here.
Executive Order Requiring Coronavirus Disease 2019
Vaccination for Federal Employees
Building on The Safer Federal Workforce Task Force (Task Force),
established by President Biden's Executive Order 13991 of
January 20, 2021, current guidance to protect the Federal workforce
and individuals interacting with the Federal workforce (e.g. onsite
contractors), President Biden has now ordered all Federal employees
to be vaccinated, "subject to such exceptions as required by
law." The Order further directs the Task Force to issue
consistent implementing guidance by September 16, 2021 (within 7
days of the Order).
Executive Order on Ensuring Adequate COVID Safety
Protocols for Federal Contractors
In his second Executive Order, President Biden mandates to the
extent consistent with his authority that covered federal
contractors and subcontractors (of all tiers) "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 (Task Force Guidance or Guidance)." The
Order directs that by September 24, the Task Force will publish
Guidance in the Federal Register detailing the protocols to be
followed by covered contractors and any exceptions to the
general safety standards established. While the EO does not
explicitly state that the Guidance for federal contractors must
include a vaccine mandate, President Biden's Plan specifically
states that the vaccination requirement for federal workers will be
"extended to the employees of contractors."
While the forthcoming Task Force Guidance will provide more details
on the requirements and implementation steps, contractors and
subcontractors need to carefully evaluate which parts of the Plan
apply to them:
Not All Contractors and Subcontractors are Covered
While the EO applies to prime contractors and subcontractors at all
tiers, it is not applicable to all contractors. The EO only applies
to the following types of contracts:
- procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property;
- contract or contract-like instrument for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
- contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); or
- contract or contract-like instrument 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.
The EO does not apply to:
- grants;
- contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93-638), as amended;
- contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold, as that term is defined in section 2.101 of the Federal Acquisition Regulation;
- employees who perform work outside the United States or its outlying areas, as those terms are defined in section 2.101 of the Federal Acquisition Regulation; or
- subcontracts solely for the provision of products.
While contractors holding or entering into other types of
contracts, such as for the sale of goods, are not bound by this
Executive Order, they may still have vaccine or testing
requirements under other orders as explained in our initial client alert.
Not All Employees of Covered Contractors Are Covered
President Biden's Executive Order only applies to workplaces
"in which an individual is working on or in connection
with" one of the covered contracts. This means that contractor
locations where no contract work is performed and there are no
personnel, such as accountants who perform tasks in connection with
the contracts, will not be covered by the Task Force Guidance.
Before determining that a work location is not covered by the
Executive Order mandates, contractors should be clear how the
"work in connection with the contract" applies to their
operations. Contractors should also stay tuned to see whether this
Executive Order applies only to contractor employees or to
independent contractors, staffing agency employees, or others who
may be in the covered workplaces.
The Requirements Do Not Start Immediately
While the Executive Order is effective immediately, it does not
automatically apply to existing federal contracts. Rather, it shall
apply to "new contracts; new contract-like instruments; new
solicitations for contracts or contract-like instruments;
extensions or renewals of existing contracts or contract-like
instruments; and exercises on existing contracts or contract-like
instruments" entered into, extended or renewed, or where the
option is exercised on or after October 15, 2021.
However, the EO also strongly encourages agencies to use
whatever authority they may have to the extent permitted by law to
require the same or similar protocols to contracts entered into
between now and October 15, 2021, as well.
Limited Exceptions Will Likely Be Permitted
While the Executive Order applicable to Federal employees notes
that the vaccination mandate will apply "subject to such
exceptions as required by law", this term is not defined.
Presumably, it includes requests for accommodation under the
Americans with Disabilities Act and requests for religious
accommodation under Title VII.
The Requirements May Change Over Time
The clause that will be incorporated into federal contracts will
state that for the duration of the contract the
contractor/subcontractor must comply with all guidance published by
the Task Force. The only limit on this requirement is that to bind
contractors, the Director of the Office of Management and Budget
must approve the Task Force Guidance. The approval will be premised
on a finding that adhering to the Guidance will "promote
economy and efficiency in Federal Contracting."
Until the Task Force issues the Guidance on the protocols to be
followed by covered contractors, it will be difficult for
contractors to develop their compliance strategy. However, some
decision points are clear:
- Contractors with 100 or more employees, like all other
employers of that size, will at some point need to ensure that
their workforce is fully vaccinated or require any unvaccinated
workers to produce weekly negative test results;
- Contractors of any size with contacts covered by this Executive
Order may not have the option of allowing workers in locations
performing work on or in connection with covered government
contracts to be unvaccinated. These contractors should begin
thinking about whether they will lose workers once the mandate is
in place AND whether they intend to impose the vaccine mandate
company-wide or only at covered facilities.
- Employees likely will be asking about whether the company plans to require all workers to be vaccinated before the Task Force issues its Guidance. Contractors should begin thinking about their workplace culture and put together a communication plan.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.