By David T. Hickey and Amba M. Datta*

The Safer Federal Workforce Task Force has issued guidance implementing President Biden's Executive Orders pertaining to the COVID-19 action plan with respect to federal government contractors. Covered contractors must immediately be prepared to implement the Task Force guidance. This article summarizes the top takeaways for government contractors in this rapidly developing area.

President Biden issued two executive orders requiring federal employees and federal contractor employees to get vaccinated against COVID-19. As part of his broad "Path Out of the Pandemic" COVID-19 action plan, the president also directed the Department of Labor's Occupational Safety and Health Administration to develop an Emergency Temporary Standard requiring private employers with 100 or more employees to ensure their workforce is fully vaccinated or mandate unvaccinated workers to undergo weekly testing. Similar mandates were issued covering certain health care workers, federal employees and uniformed military personnel.

Following the issuance of the federal contractor vaccine mandate contained in Executive Order 14042 ("the EO"), the Safer Federal Workforce Task Force ("Task Force") led by the White House COVID-19 Response Team issued guidance ("the Guidance") implementing the EO with respect to federal government contractors on September 24, 2021. Importantly, the Task Force's website also includes "Frequently Asked Questions" providing additional guidance to federal contractors on implementing the EO, and requiring monitoring by contractor compliance personnel.

On September 30, the Federal Acquisition Regulatory Council issued a contract clause requiring contractors and subcontractors at any tier to comply with the guidance published by the Task Force and recommended that federal agency acquisition offices exercise their authority to develop Federal Acquisition Regulation ("FAR") deviation clauses implementing the Task Force's guidance. The Civilian Agency Acquisition Council, Department of Defense and General Services Administration have issued class deviation clauses as well incorporating the Task Force's guidance.

Since the EO, the Task Force Guidance, and contract clauses were issued, legal challenges have been filed in federal court by over two dozen states challenging the legality (procedurally and constitutionally) of the mandate. This has complicated an already difficult compliance landscape for contractors and subcontractors of all sizes. Multiple federal district court judges have issued injunctions against enforcement of the mandate. As of this writing, a nationwide preliminary injunction is in place as a result of a December 7 preliminary injunction issued by the U.S. District Court for the Southern District of Georgia, which is under appeal by the Justice Department. As a result, the Task Force and individual contracting agencies have announced that the mandate will not be enforced pending the outcome of these federal cases. In addition, the Department of Defense issued a new class deviation indicating that contracting officers would not include the contract clause in new DoD solicitations or new contracts and orders and would not amend existing contracts or order to incorporate the class deviation clause.

Regardless of the current state of court proceedings, covered contractors must be prepared to implement the Task Force Guidance. This article summarizes the top takeaways for government contractors in this rapidly developing area.


The federal contractor vaccine mandate applies broadly to require federal contractor employees on covered contracts, those who perform duties in connection with a covered contract, and those working at the same workplace as covered employees, to be fully vaccinated from COVID-19. The Guidance also requires contractors to comply with masking and physical distancing requirements while in a covered contractor workplace and assigns responsibility for compliance to a designated individual tasked with coordinating implementation of workplace safety protocols at covered contractor workplaces.


Employees must be vaccinated no later than January 18, 2022 (as of the November 10, 2021 Guidance), or by the first day of performance of a covered contract, option exercise, or renewed contract when a clause requiring compliance with the Guidance has been incorporated into a contract. The clauses (and therefore the Guidance) will be incorporated as follows:

  • In new federal contracts or contract-like instruments awarded on or after November 14, 2021;
  • In existing contracts for which options are exercised or extensions are issued;
  • In new solicitations issued on or after October 15, 2021, and contracts awarded pursuant to those solicitations (this includes new solicitations issued on or after October 15, 2021 for orders awarded pursuant to those solicitations under existing indefinite-delivery contracts).

(As of this writing, these dates have been suspended due to court orders).


* David T. Hickey, a partner at Kelley Drye & Warren LLP and chair of the Government Contracts practice group at the firm, counsels clients on a wide spectrum of legal and legislative matters related to federal contracts, defense and national security issues. Amba M. Datta is special counsel at the firm focusing her practice on government contracts, internal investigations and compliance. The authors may be reached at and, respectively.

Originally Published by Pratt's Government Contracting Law Report

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