The new vaccine requirement for federal employees and contractors has sparked a lot of interest (and controversy) during the past week. There is a lot of information to digest in “Ensuring Adequate COVID Safety Protocols for Federal Contractors” (EO 14042), part of the President’s “Path out of the Pandemic” plan. Kairos will briefly describe the requirements, implementation dates, coverage, and potential for challenges below.
EO 14042 requires federal contractors and subcontractors to comply with all guidance published by the Safer Federal Workforce Task Force (created by the Biden Administration), requiring vaccination of employees of federal contract and subcontract holders as outlined in the President’s “Path out of the Pandemic” plan and the addition of a clause in new contracts (see details in the dates section). Interestingly, the Executive Order does not use the word “vaccine”, but the Plan requires the same standard applied to federal employees be “extended to employees of contractors that do business with the federal government”.
The “Path out of the Pandemic Plan” also instructs The Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop a rule 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. Failure to comply may result in fines. OSHA has also been ordered to develop a rule for private employers, requiring paid time off for vaccination and/or recovery.
Although the EO states it is “effective immediately”, the following dates provide clarification regarding implementation by the federal government and contractors.
- September 24, 2021 – The Task Force will issue a clause (similar to the EO clause) to be included in all new federal contracts (and lower-tier subcontracts). The clause will provide definitions, terminology, and explanations of protocols required for compliance.
- October 8, 2021 – Federal agencies will ensure all “contract and contract-like instruments” (as defined by the proposed “Increasing the Minimum Wage for Federal Contractors”) include the clause.
- October 15, 2021 –New contracts will require the clause and compliance with guidance issued by the Task Force.
The clause does not need to be adopted for existing contracts but must be adopted for federal contractor employees who perform work “on or in connection with” new federal contracts.1 Since most employers do not individually track which employees are working in connection with a covered contract, policies are often adopted company-wide (similar with how most contractors handle affirmative action coverage). It is assumed that most companies will broadly apply coverage as the Order is clearly designed to encourage employers to require vaccination for all employees.
The EO applies to any new contracts, new solicitations, extensions or renewals of existing contracts, and the exercise of any existing contract options for: (i) procurement for services, construction, or a leasehold interest in real property; (ii) services covered by the Service Contract Act; (iii) concessions, or (iv) in connection with federal property or lands.
This order does not apply to: (i) federal grants, (ii) contracts with Indian Tribes, (iii) contracts valued at less than the simplified acquisition threshold, and (iv) contracts for work performed outside the United States and its territories.
It’s important to state the obvious. Legal challenges are coming, many announced moments after the President finished his press briefing. The President is the Chief Executive of the federal government and as such has broad powers to require vaccinations for the federal agencies, similar to mask requirements adopted earlier this year. The EO assumes this power flows down to the federal contractor community without the formal rulemaking process required by the Administrative Procedure Act (requiring a proposal and comment period) when a federal agency seeks to impose a substantial impact on its regulated community.
Kairos will continue to monitor this for further developments. If you have any questions, please reach out.
1.Existing contracts/subcontract holders are not automatically subject to the EO (unless they enter into a new contract as specified in the Applicability/Coverage section) but are “strongly encouraged” to ensure that the safety protocols required under those contracts and contract-like instruments are consistent with the requirements specified in the EO. Solicitations within 30 days of October 15, 2021, and contracts entered into or issued between the date of the EO (September 9, 2021) and the effective date of October 15, 2021, are also strongly encouraged but note required to comply with the EO.