In order to aid President Biden’s plan in containing the COVID-19 pandemic, two Executive Orders were released on September 9, 2021, mandating COVID-19 vaccines for federal government employees and employees of federal government contractors. It should be noted that these new mandates build on and supplement the federal employee COVID-19 protocols issued in late July, which simply required vaccination certification or testing for every federal government employee and onsite contractor. The new Executive Orders eliminate the testing option for those who are not vaccinated unless they receive an approved exemption. Thus, federal employees may no longer “test out” of vaccination. The Executive Orders only apply to employers working pursuant to contracts issued on or after, or for which options to extend are exercised on or after, October 15. Federal employees (and, therefore, presumably federal contractors) will have 75 days to get fully vaccinated.
The first Executive Order creates the Safer Federal Workforce Task Force (Task Force), which will issue guidance requiring a vaccine mandate for federal agency employees by September 24. Federal agencies are then required to implement the Task Force’s guidance “with exceptions only as required by applicable law.” The second Executive Order provides that new government contracts and contract-like instruments must include a clause requiring the contractor and “any subcontractors” to comply with “all guidance” issued by the Task Force. All applicable contracts will also be required to include a flow-down clause to incorporate the safety protocol requirements in lower-tier subcontracts. The clause shall specify that the contractor or subcontractor 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 Guidance at any workplace locations where an individual is “working on or in connection with a Federal Government contract or contract-like instrument. Thus, these requirements may also apply to remote employees if they are working on qualifying contracts, although the remote employee issue should be made clear in the Guidance.
The White House also directed the Occupational Safety and Health Administration (OSHA) to develop and issue an emergency temporary standard (ETS) mandating that employers with 100 or more employees require employees to be fully vaccinated or submit to weekly testing. Under the anticipated ETS, employers must provide paid time off to employees for receipt of the vaccine or recovery from post-vaccination symptoms. Employers violating the rule could face fines of up to $14,000 per violation. It is unclear exactly when this rule will be published, but reports indicate that it should be released later this month. Due to the rule not being published yet, there is still uncertainty as to when it will take effect and as to the specifics for type of tests allowed, who pays for the testing, or if individuals refuse to comply. The rule would be effective upon release.
Common Questions and Answers
When is this effective? Is there a grace period?
- The OSHA ETS has not published the rule yet, so there is uncertainty when it will become effective.
- Although the Federal Contractor and Employee Executive Orders are effective immediately, certain requirements will apply to new contracts, renewals, and exercises of options on or after October 15, 2021. However, federal contractors with pending solicitations or existing contracts are “strongly encouraged, to the extent permitted by law,” to follow the new safety protocols specified in the Guidance. Federal employees and contractors will have 75 days to get fully vaccinated from the issuance of the Executive Orders.
Which Federal Contractors are impacted?
- Effective immediately, the new rules will apply to any new contract or new contract-like instrument, including a new solicitation, extension, or renewal or exercise of an option, provided it is:
- a procurement contract for services, construction, or a leasehold in real property;
- a contract covered by the Service Contract Act (SCA);
- a contract for concessions, including concessions excluded generally under the SCA; or
- a contract in connection with federal property or lands offering services for federal employees, dependents, or the general public.
Contracts NOT covered include:
- Indian Tribes contracts or contract-like instruments;
- those with a value equal to or less than the FAR simplified acquisition threshold;
- agreements involving employees performing work outside the U.S.; and
- subcontracts solely for the provision of products.
What are the requirements under the new Executive Orders?
- Detailed requirements should follow by September 24, when the Safer Federal Workforce Taskforce issues further guidance specifying the exact requirements for federal contractors. This guidance must be approved by the Director of the Office of Management and Budget.
Is an employee eligible to work while they receive confirmation of negative test result?
- OSHA has not yet stated whether an employee will or will not be eligible to work until they receive a negative test result. That is expected to be outlined when the ETS rule is published.
Does the employer need to pay the employee for the time off to get vaccinated?
- Under the OSHA ETS, it is anticipated that covered employers will have to be provided paid time off for “the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination.” There is no further information about testing protocol currently until OSHA publishes the rule.
- The Executive Orders for Federal employees and contractors do not allow for opting out of testing instead of receiving the vaccination.
Who pays for the testing?
- It is unclear who will have to pay for the cost of employee testing (along with the time it takes to be tested) under the ETS, though the White House did state in Part 4 of its action plan that it was working with industry to make at-home tests more affordable.
What types of tests are considered acceptable?
- It is unclear whether the ETS will mandate a particular type of COVID-19 test (antigen, PCR, etc.).
What are the penalties for non-compliance?
- The proposed ETS is also expected to increase penalties to up to $14,000 per violation.
Authors: Camille DeCamp, Kathleen Alt, Giovanni Ruscitti, and Reyna Gonzalez
Readers of this article should contact an attorney to obtain advice with respect to any particular legal matter. No reader, user, or browser of this site should act or refrain from acting on the basis of information on this site without first seeking legal advice from counsel in the relevant jurisdiction. Only your individual attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. Use of, and access to, this website or any of the links or resources contained within the site do not create an attorney-client relationship between the reader, user, or browser and website authors, contributors, contributing law firms, or committee members and their respective employers.