Executive Order Calls for Increased COVID-19 Protocols

On September 9, 2021, as part of his comprehensive COVID-19 Action Plan, President Biden issued Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, which directs federal executive and agencies to ensure that covered contracts include a clause requiring contractors to comply with the guidance for covered contractor workplaces promulgated by the Safer Federal Workplace Task Force, which was published on September 24, 2021. Contractors and subcontractors on covered contracts are required to flow the clause down in their contracts with lower-tier subcontractors. The Executive Order expressly applies to subcontracts for the provision of services, construction (including under the Davis-Bacon Act), concessions, and for leasing property owned by the federal government. The Federal Acquisition Regulatory Council (FAR Council), the body charged with developing the clause, issued the language to be inserted into covered contracts in a memorandum dated September 30, 2021. 

Although the Executive Order excludes from its application grants, contracts solely for the provision of products, contracts with Indian Tribes, and contracts with a value that is less than the Simplified Application Threshold (SAT), currently $250,000, the guidance expressly encourages federal agencies and covered contractors to incorporate the clause even into contracts and subcontracts that are not covered under the Executive Order. The FAR Council’s memorandum, likewise, encourages government agencies to include the clause in all contracts other than those with Indian Tribes and those for performance outside the United States or its outlying areas, i.e., including contracts entered into prior to the November 14, 2021, effective date of the Executive Order, contracts with values under the SAT, and contracts for the manufacture of products. The FAR Council leaves it to the discretion of each contracting agency the extent to which the agency will use the clause in contracts not directly covered by the Executive Order. Those agencies that have already started incorporating the clause into their solicitations, new contracts, and contract modifications, including the Department of Defense, Veterans Administration, and General Services Administration, are exercising their discretion to include the clause in a far broader range of contracts than those listed in the Executive Order.  Thus, at this time, federal contractors’ coverage and associated compliance obligations arise from the language of their individual contracts with government agencies, in conformance with the guidance, as amended from time to time.

Task Force Guidance Establishes Protocols for Federal Contractors

The COVID-19 safety protocols set forth in the guidance are designed to protect and cover all employees in the workplace of a covered contractor who performs work “on or in connection with” a covered contract, including not only employees performing work under the contract but also employees who, although not engaged in the specific work called for under the contract, provide support services related to such performance (such as HR, billing, or other administrative personnel). In that regard, covered employers should note that even employees performing work on a covered contract remotely must comply with the vaccination requirement under the guidance. Consistent with the protective aim of the Executive Order, the requirements of the guidance also apply to all employees who could even come into contact with employees performing work on or in connection with a covered contract, for example, in a lobby, elevator, stairwell, meeting room, kitchen, break room, or other common area. Thus, as a practical matter, covered employers who conduct business at a single building, site, or facility, should assume that the requirements under the guidance apply to their entire workforce.

A covered contractor’s obligations under the guidance further extend to any workplace location “controlled by a covered contractor at which any employee …working on or in connection with a covered contract is likely to be present during the period of performance… .” A covered contractor must ensure that all individuals present at such a workplace location, whether an employee or visitor, comply with current, published CDC guidelines for masking and physical distancing pertaining to the specific setting, which take into account such factors as whether the workplace is indoors or outdoors, the rate of community transmission, vaccination status, and whether sustained close contact is involved. Access to current CDC guidelines that apply to the location of any particular workplace are available at the  CDC COVID-19 Data Tracker County View website.

What Is Required of Covered Federal Contractors?

Pursuant to the guidance, covered federal contractors and subcontractors must:

1. Require all employees to be fully vaccinated against COVID-19, by the deadlines provided in the guidance, unless an employee is legally entitled to an accommodation (i.e., a reasonable accommodation for a disability under the ADA; or a religious accommodation under Title VII);

2. Require employees and visitors to covered workplaces to comply with current masking and physical distancing requirements recommendations by the CDC; and

3. Designate a person(s) to coordinate the employer’s COVID-19 safety efforts, including to ensure that employees show or provide proper vaccination documentation and to communicate the employer’s COVID-19 safety protocols and requirements relating to masking and physical distancing to employees, visitors, and other individuals present in the workplace via email, websites, memos, flyers, posted signage, or other appropriate means.

Those requirements for federal contractors supersede any contrary state or local law but are not intended to excuse employers from compliance with any other protective safety protocols required under applicable state or local law. 

What Deadlines Apply?

Covered federal contractors must take measures to comply with the guidance, including by ensuring that their employees are fully vaccinated by December 8, 2021. An employee is considered fully vaccinated two weeks after the second dose of a two-dose series of vaccinations or two weeks after receiving a single-dose vaccine.  After December 8, 2021, employees of covered federal contractors must be fully vaccinated by the first day of performance under a newly awarded contract or an extended or renewed contract. To ensure compliance with the vaccination requirements, federal contractors must require their employees to show or provide a copy of their record of immunization from a healthcare provider or pharmacy or their CDC COVID-19 Vaccination Record Card. The guidance is clear that mere attestation by the employee is not an acceptable substitute for proof of vaccination.

Compliance in the Case of Employee Exemption Requests

As noted above, covered contractors are required to ensure that their employees are fully vaccinated, except under the limited circumstances where an employee is legally entitled to an accommodation and, as a result, is not vaccinated against COVID-19 because of a medical condition or disability or because of a sincerely held religious belief, practice, or observance. Requests for accommodation must be reviewed and evaluated on an individual, case-by-case basis to determine whether a “reasonable accommodation” is available. The respective tests for what constitutes a reasonable accommodation,  the “undue burden” test under the ADA (disability) or the “undue hardship” test under Title VII (religion), are significantly different, and the analysis of accommodation has been further complicated by radical changes to workplace norms wrought by the COVID-19 pandemic itself, including the increased acceptance of remote work and heightened safety requirements. Fuller discussion of the considerations involved in responding to a request for accommodation is beyond the scope of this article. However, in cases where reasonable accommodation results in an unvaccinated employee being physically present in a covered workplace, current Safer Federal Workforce Guidance sets forth the following requirements for unvaccinated individuals, namely, that they:

1. Wear a mask at all times;

2. Maintain social distancing from coworkers; and

3. Provide weekly proof of testing negative from an FDA-approved lab. 

The Takeaway

Beginning immediately, federal contractors will want to carefully review their obligations under any new solicitations, contracts, or contract extensions. Once bound by the terms of a contract including the clause, a federal contractor will want to review the current guidance (and FAQs) and take the necessary measures to comply therewith. Although specific mechanisms for ensuring compliance have not yet been identified, federal contractors should prepare to certify compliance, or for other potential compliance scrutiny, by documenting all steps taken to implement the safety protocols set forth in the guidance. As with all federal contracts, the price of non-compliance can range from contract termination or debarment to potential exposure to liability under the False Claims Act.