On September 9, 2021, President Biden signed executive orders that will require that all federal executive branch workers to be vaccinated for COVID-19 (the “Federal Employee Order”) and that this standard be extended to employees of contractors that do business with the federal government as well (the “Contractor Order”). Private employers who do business with the federal government—whether as prime contractors or subcontractors—should be prepared to implement internal policies that will comply with this standard. Here is what we know about the vaccine requirement for federal contractors to date:
- The specific protocols that will be required of federal contractors have not yet been released. The Contractor Order directs the Safer Federal Workforce Task Force to issue guidance on or before September 24, 2021 that will detail the requirements of contractors and subcontractors, as well as any exceptions to those requirements. The guidance will hopefully clarify the “workplace locations” where any vaccine requirement must be implemented.
- The protocols will extend to all contractors and subcontractors, regardless of tier. The Contractor Order expressly states that all federal procurement contracts include a clause that requires the prime contractor to comply with the Safer Federal Workforce Task Force guidance and that such a clause must also be incorporated into lower-tier subcontracts.
- The protocols supplement—and do not override—state and local rules. The Contractor Order states that the vaccine protocols for federal contractors shall not excuse noncompliance with any applicable state or local law establishing more protective safety protocols.
- The protocols do not retroactively apply to existing contracts. The Contractor Order states that the vaccination protocols must be included in new contracts, extensions or renewals of existing contracts, and exercises of options on existing contracts, where such contracts are entered into, renewed, extended on or after October 15, 2021.
The administration’s executive orders regarding federal employees and contractors are part of its broader “action plan” that included an announcement that OSHA will be implementing a rule requiring that employees of employers with 100 or more employees either be vaccinated or subject to weekly testing, which we covered here. We will update this article with more information as it becomes available.
