On September 9, 2021, the White House announced a series of actions intended to reduce the number of Americans who have not been vaccinated against COVID-19. These actions are detailed in the President’s “Path Out of the Pandemic: President Biden’s COVID-19 Action Plan” (the “COVID-19 Action Plan”), which is available here. The objective of the COVID-19 Action Plan is to “ensure that we are using every available tool to combat COVID-19 and save even more lives in the months ahead, while also keeping schools open and safe, and protecting our economy from lockdowns and damage.”
Of particular relevance to companies doing business with the Federal Government, the White House issued two new executive orders requiring vaccination for Federal employees and employees of Federal contractors: (1) the Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees (the “Employee Order”), available here; and (2) the Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (the “Contractor Order,” and together with the Employee Order, the “Orders”), available here. The Employee Order requires all Federal executive branch workers to be vaccinated in accordance with guidance to be issued by the Safer Federal Workforce Task Force (the “Task Force”), established by Executive Order No. 13991. The Contractor Order does not mention vaccination, but instead requires Federal contractors and subcontractors to comply with guidance to be issued by the Task Force for contractor and subcontractor workplace locations. In President Biden’s announcement of the COVID-19 Action Plan on September 9, 2021 (available here), and in the COVID-19 Action Plan itself, the administration has stated that Federal contractor employees would be subject to the same vaccination mandate applicable to Federal employees. The two new Orders reference Task Force guidance that has not yet been issued; however, they appear to represent a strengthening of the vaccination policies that the Biden Administration announced in July, which required personnel to attest to their vaccination status or submit to weekly testing.
The new Orders are separate from, and should not be confused with, another element of the COVID-19 Action Plan, namely, the development of an emergency rule by the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. The White House announced that OSHA will issue an emergency temporary standard to implement this requirement, which the White House estimates will impact over 80 million workers. The new Orders applicable to Federal employees and contractors leverage the Government’s authority to manage the Federal workforce and procurement, and do not invoke OSHA’s jurisdiction. This is significant, as a number of states and other organizations have already vowed legal action to block any rule that OSHA might issue mandating vaccination. Such litigation likely will not prevent the Government from implementing the two new Orders.
The Employee Order requires COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law. The Employee Order requires the Task Force to issue guidance within 7 days of the Employee Order on how agencies should implement the vaccination requirement. The Employee Order does not identify the exceptions that may be required by law, which will presumably be addressed in the guidance issued next week by the Task Force. However, the Task Force’s existing guidance already recognizes that employees may decline to be vaccinated for medical and religious reasons.
The Contractor Order directs agencies to include a clause in all new contracts, solicitations, and extensions requiring both contractors and subcontractors to comply with all guidance published by the Task Force for contractor or subcontractor workplace locations (subject to a determination by the Director of the Office of Management and Budget that the Task Force’s guidance will promote economy and efficiency in Federal contracting). This clause will apply to any workplace locations in which an individual is working on or in connection with a Federal Government contract. Prime contractors and higher-tier subcontractors will be required to flow down the clause to lower-tier subcontracts.
The Contractor Order directs the Task Force to publish by September 24, 2021, the protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions to Task Force guidance that apply to contractor and subcontractor workplace locations and individuals in those locations. The Contractor Order directs the Federal Acquisition Regulatory (“FAR”) Council to promulgate the new clause required by the Contractor Order and, by October 8, 2021, to begin providing direction to acquisition offices for use of the clause. The Contractor Order requires the FAR Council to recommend that agencies exercise their authority to deviate from the FAR under FAR Subpart 1.4; however, it is unclear what deviation would be necessary if the FAR was amended to include a new clause.
Notably, the Contractor Order does not mention vaccination. As discussed above, however, the White House’s announcement of the COVID-19 Action Plan, and the plan itself indicates that Federal contractor employees will be subject to the same vaccination mandate applicable to Federal employees. The guidance issued by the Task Force to date strongly encourages vaccination and establishes safety protocols for unvaccinated personnel. Accordingly, there appears to be no reason to doubt that the guidance that will be issued for contractor and subcontractor workplace locations will contain a vaccination mandate that is substantially similar or identical to the mandate applicable to Federal employees.
The Contractor Order applies to new contracts or solicitations issued on or after October 15, 2021, as well as extensions or renewals of existing contracts, or exercises of options on existing contracts, that occur on or after October 15, 2021. For all existing contracts, the Contractor Order states that “agencies are strongly encouraged, to the extent permitted by law, to ensure that the safety protocols required under those contracts and contract-like instruments are consistent with the requirements” included within the Task Force’s guidance. The Contractor Order, however, does not provide any guidance to agencies regarding how to obtain inclusion of the clause into existing contracts through bilateral modification, or whether to seek to unilaterally incorporate the clause using use rights such as those under the standard “Changes” clauses.
The Contractor Order regarding contractors makes clear that it does not supersede or excuse noncompliance with any applicable state law or municipal ordinance establishing more protective safety protocols than those established under the Contractor Order. The Contractor Order also states that it does not supersede or excuse noncompliance with any more protective Federal law, regulation, or agency instructions for contractor or subcontractor employees working at a Federal building or a federally controlled workplace. Again, the Contractor Order should not be confused with an emergency rule that will be published by OSHA, which may be more prescriptive than the Task Force’s guidance. To the extent OSHA’s emergency rule is more prescriptive than the Task Force’s guidance, OSHA’s rule will presumably govern. However, that rule is likely to face extensive litigation and delay; so for now, Federal contractors should concentrate on the rules particularly applicable to them.