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:
- 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.