Member Article

Summary

On September 9, 2021, President Biden issued orders that have the intent of requiring employers to mandate that their employees are vaccinated against COVID-19 or undergo regular testing and other restrictions.

President’s Biden’s Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (the “Executive Order”) will, when implemented, require most federal contractors to comply with all guidance for federal contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (see www.saferfederalworkforce.gov). This guidance is expected to require federal government contracts to require their employees to either (i) be fully vaccinated or (ii) be tested weekly, practice social distancing, and wear masks.

President Biden also ordered on September 9, 2021, that OSHA issue an emergency rule requiring public and private employers with at least 100 employees to ensure workers are vaccinated or else require weekly testing for unvaccinated workers. Occupational Health and Safety Administration (OSHA) is expected to issue an Emergency Temporary Standard (ETS) to implement this requirement. On Friday, September 10, 2021, OSHA and Department of Labor (DOL) conducted an information session in which the agencies stated the following:

• the 100 employee threshold is per employer, and not per location;
• the ETS, when issued, will be consistent with the federal contractor requirements set out in this email;
• the ETS will not apply to workers who work remotely and do not enter a worksite or office. However, any employee who enters an employer location must comply;
• they have not yet decided the verification process;
• DOL and OSHA encourage employers to implement mandatory vaccination policies to protect workers and the public;
• The ETS will comply with existing federal law regarding interaction with collective bargaining agreements.

Beyond these clarifications, we still do not know certain things, such as what if an employer fluctuates with employee numbers over and under 100? Who is going to pay for required weekly testing? When will the ETS be issued?

Additionally, President Biden ordered the Centers for Medicare & Medicaid Services (CMS) to take action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement. This will affect medical providers, such as hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies that receive Medicare or Medicaid reimbursements. Note that some of these facilities are already under state orders requiring vaccination. The facility must comply with the most restrictive mandate.

Implementation

The Executive Order directs federal agencies to include in certain contracts a clause specifying that the federal contractor or subcontractor shall, for the duration of the contract, comply with all guidance for federal contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (“Task Force Guidance” or “Guidance”). Accordingly, the Executive Order will be implementing its vaccine/mask mandate by making it a contractual obligation in federal contracts.

Although we know an ETS is coming regarding employers with over 100 employees, we don’t have an exact date for its implementation. Employers should be ready to enforce it immediately upon implementation.

Which Contracts Does the Executive Order Cover?

The Executive Order states that it will apply to an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument, if the contract is:

• a procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property;
• a contract or contract-like instrument for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
• a 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
• a 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.

Due to the expansive scope of the Executive Order, if you are a federal contractor, you might find your contract includes a clause specifying that you have to, for the duration of the contract, comply with all guidance for federal contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force. 

Which Contracts Does the Executive Order Exclude?

The Executive Order excludes the following from its scope:

• grants;
• contracts, contract-like instruments, or agreements with Indian tribes under the Indian Self-Determination and Education Assistance Act (ISDEAA) (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 (currently $250,000);
• employees who perform work outside the United States or its outlying areas, as those terms are defined in section 101 of the Federal Acquisition Regulation; or
• subcontracts solely for the provision of products.

These exclusions mean that Alaska Native Corporations, tribes, and other entities that fall within the definition of Indian tribes under the ISDEAA will not be subject to the Executive Order if their only contract with the federal government is an ISDEAA contract. However, if their subsidiaries have other federal contracts with the federal government, those subsidiaries may be subject to the Executive Order depending on the nature of that subsidiary’s contract with the federal government. Moreover, even if they do not have federal contracts, they may be subject to the pending OSHA emergency order requiring public and private employers with at least 100 employees to ensure workers are vaccinated or else require weekly testing for unvaccinated workers.

There remains some uncertainty as to the ultimate form of the contract clause and to the extent that it would flow from the contractual obligation to comply with the Guidance for federal contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force up to a parent corporation.

When Will Federal Contractors Have to Begin to Follow the Safer Federal Workforce Task Force Guidance?

The Executive Order is being implemented by adding contractual clauses to federal contracts.

The Executive Order directs federal agencies to begin to add the applicable clause starting on October 15, 2021, to the following:

• 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 of options on existing contracts or contract-like instruments.

Accordingly, any new contracts and solicitations issued after October 15, 2021, will contain the contractual clause requiring the federal contractor to comply with the Guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.

For existing contracts, the applicable Contractor Officer will likely add the contractual clause requiring the federal contractor to comply with the Guidance for federal contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force to the contract upon renewal or exercise of an option year. Accordingly, if you have a contract that will be renewed, or an option year extended, sometime after October 15, 2021, that contract will likely be modified, as part of the renewal or exercise of the option year, to include the contractual clause requiring the federal contractor to comply with the Guidance for federal contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.

Even if a federal contractor does not have a contract that includes the contractual clause mandated by the Executive Order, that federal contractor may still be subject to the pending OSHA emergency order requiring public and private employers with at least 100 employees to ensure workers are vaccinated or else require weekly testing for unvaccinated workers. Currently, we do not know how OSHA will define whether an employer has 100 employees (for example, if an employer’s workforce fluctuates during the year, with 100 employees in some months and fewer employees in others). President Biden’s order requires that employers with at least 100 employees provide paid time off to employees so that they can get vaccinated and to recover from the potential side effects after vaccination. Employers have the option to provide leave under the Families First Coronavirus Response Act (“FFCRA”) and then receive tax credits under that Act. The FFCRA currently expires on September 30, 2021, and it remains to be seen whether Congress will provide an extension.

What Will the Safer Federal Workforce Task Force Require?

The Safer Federal Workforce Task Force appears to be continuing to update and develop the Guidance and rules that will apply. The Safer Federal Workforce Task Force has published a FAQ with extensive information and discussions regarding its current Guidance at https://www.saferfederalworkforce.gov/faq.

The current Guidance from the Safer Federal Workforce Task Force provides, in general, that employees must either:

• Be fully vaccinated or
• Be tested weekly, practice social distancing, and wear masks

Different rules apply to areas of low or moderate transmission versus areas of high transmission.

Employees should be asked to complete a Certification of Verification form attesting to their vaccination status. Documentation of vaccination states (i.e., vaccination card) is not required, although one can be requested if there is a good faith allegation that strongly suggests that an employee is being dishonest.

Employees who make a false statement on the Certification of Vaccination form can be subject to an adverse personnel action, up to and including removal from their position.

The Safer Federal Workforce Task Force has until September 24, 2021, to issue Guidance that the federal contractors and subcontractors will have to follow, and the contract clause to be added to contracts will be in place by October 8, 2021.

We will be producing a more detailed summary of the Safer Federal Workforce Task Force guidelines as they are developed.

State or local laws may impose stricter requirements, and the Executive Order states that it does not excuse noncompliance with any applicable state law or municipal ordinance establishing more protective safety protocols than those established under this order or with any more protective federal law, regulation, or agency instructions for federal contractor or subcontractor employees working at a federal building or a federally controlled workplace.

Requests for Equitable Adjustment

If complying with the contractual clause requiring the federal contractor to comply with the Guidance for federal contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force imposes additional costs on a federal contractor, that federal contractor may have a right to seek a request for equitable adjustment under the applicable changes clause in its contract.

Conclusion

Employers will likely want to develop a vaccination policy that spells out the requirements under this order. The Safer Federal Workforce Task Force has developed a memorandum that federal contractors can revise for use with their workforce to provide the Certification of Verification. There are also federal forms for the religious and medical exemptions.

 

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