Federal contractor employees, roll up your sleeves!
This won't hurt a bit.
President Joe Biden issued an Executive Order yesterday on Ensuring Adequate COVID Safety Protocols for Federal Contractors. The EO will require certain federal contractors to mandate COVID vaccines for employees. In a sweeping COVID-19 Action Plan, the President announced that all contractors – not just those performing work on federal sites – will have to mandate employee vaccinations. (A July 29 announcement by the President applied only to contract workers on federal property and allowed for masking and frequent testing in lieu of vaccination).
Similar to his order to increase the minimum wage for federal contractors, the President's vaccine Executive Order applies only to a subset of contractors. These mandates will apply to the following types of new contracts:
- Procurement contracts or contract-like instruments for services, construction, or a leasehold interest in real property.
- Contracts or contract-like instruments for services covered by the Service Contract Act.
- Contracts or contract-like instruments for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b).
- Contracts or contract-like instruments 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.
Contracts for the provision of products or supplies are not covered by the Executive Order, nor are employees who perform work outside of the United States.
Significantly, the Executive Order itself does not detail exactly what will be expected of covered contractors. It directs the Safer Federal Workforce Task Force to issue guidance by September 24 that explains the “safeguards to decrease the spread of COVID-19” and “protocols required of contractors and subcontractors. . . .” Compliance with this guidance will then be required through a new clause in contracts that are entered into, extended, or renewed on or after October 15. Covered contractors will need to include the contract clause in lower-tier subcontracts. Based on the President’s statement, the guidance is expected to mandate vaccinations of employees working on or in connection with covered contracts and subcontracts, but it could potentially include exceptions or alternatives.
The new Executive Order does not address exceptions for employees who are unvaccinated because of disabilities or religious objections. Guidance issued earlier this summer by the U.S. Equal Employment Opportunity Commission says that employers should make reasonable accommodations for employees who are not vaccinated for these reasons. However, it is possible that a weekly COVID testing requirement for on-site workers would be considered a reasonable accommodation.
Nor does the Executive Order address compliance for contractors in states that ban mandatory vaccination policies. The Executive Order also does not explain how the contract clause will be enforced or what the penalties will be for non-compliance. Presumably, the guidance or contract clause will contain information regarding these issues.
Although the Executive Order is effective immediately, it applies only to covered contracts that are entered into, extended, or renewed on or after October 15, 2021. The Executive Order, however, “strongly encourages” federal agencies to incorporate the new contract clause, where lawful, into solicitations that occur before that date.
Contractors are not the only employers targeted by the new presidential edict. In addition,
- All employees of the executive branch must be vaccinated.
- All private employers with more than 100 employees will also be required to either mandate vaccinations or demand negative test results at least weekly.
- Healthcare workers at facilities participating in Medicare and Medicaid must be vaccinated.
- Teachers and staff at Head Start and Early Head Start programs, Department of Defense schools, and schools operated by the Bureau of Indian Education must be vaccinated.
The second bullet above is the most significant for most employers, and those employers that have not already implemented vaccination requirements should remain vigilant for further direction from the Occupational Safety and Health Administration. Under rules for temporary emergency standards, comments will not be solicited, and the rule from OSHA will be expedited. According to information posted on the White House website, employers will be required to provide paid leave for employees to get vaccinated and to recover from side effects of the vaccines. (At the link, scroll down to “Requiring Employers to Provide Paid Time Off to Get Vaccinated” and expand that section). For more details on the requirements for private employers, please see the Bulletin that Bill Principe, co-chair of our Workplace Safety Practice Group, and I published today.
As always, we will provide additional details as this situation develops and further information becomes available.