On September 9, 2021, President Biden issued an Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (“Order”). The Order seeks to “promote economy and efficiency in procurement” by requiring compliance with new COVID-19 protocols, which will be announced on September 24. The Order was issued on the same day as the President’s widely-covered speech announcing vaccine mandates for federal employees and businesses with 100 or more employees (see companion blog post, available here). Accordingly, although the Order does not mention vaccines, the new COVID safety protocols will likely include a vaccine mandate. Subject to certain exceptions, the protocols will apply not only to procurement contracts but also to contract-like instruments, and will also sweep in employees of businesses that operate on federal lands and buildings pursuant to a written agreement with the federal government.
In brief, the Order requires the Safer Federal Workforce Task Force to issue guidance by Sept. 24, 2021 that will include protocols that contractors and subcontractors must follow, including definitions of relevant terms and any applicable exceptions. Federal agencies will be required to take steps to implement the protocols by October 8, and will be required to include a clause enforcing the protocol in any solicitation, contract or contract-like instrument, or option (collectively, “Contract”) by October 15, in the case of any
- Procurement contract for services, construction, or a leasehold in real property;
- Contract for services covered under the Service Contract Act;
- Contract for concessions; or
- Contract in connection with Federal property or lands and related to oﬀering services for Federal employees, their dependents, or the general public.
Additionally, prime contractors will be required to flow down the clause to lower-tiered subcontractors.
In short, the application of the new protocols will apply broadly and extend well beyond federal procurement contracts. For instance, they could potentially apply to landlords of federal tenants as well as property management companies, who could be considered to be subcontractors of landlords depending on how the term “subcontract” or “subcontractor” is defined or interpreted. They could also apply to ski operators, child care centers, cafeterias, and other businesses that operate on federal land – even if they are not government contractors in the traditional sense of the phrase. Additionally, unlike the President’s previous remarks, which were limited to contractors in federal workplaces, the new Order applies to all federal contractors and subcontractors, regardless of whether they work at a federal worksite or at the contractor worksite.
However, the Order does not apply to grants, contracts with the Indian Tribes, contracts or subcontracts whose value is equal or below the simplified acquisition threshold ($250,000 for most new contracts), employees who perform work outside the United States or its outlying areas, or subcontracts solely for the provision of products.
There are many details that will need to be ironed out by both the Safer Federal Workforce Task Force and the FAR Council, including:
- Will the mandate be a “hard” vaccine mandate, or will it allow employees to present a recent negative test in lieu of proof of vaccination?
- What will an employer’s recordkeeping requirements regarding proof of vaccination be? And what will be an Agency’s ability to audit compliance?
- Will the Order’s implementing clause allow for accommodations, either through the Americans with Disabilities Act or on religious or conscientious grounds? If it does not, how should the Order’s implementing clause be viewed in light of those requirements?
- How will the implementing clause allow for or purport to supersede state law prohibiting mandates? According to the National Academy for State Health Policy, seven states have passed laws preventing or restricting employers, or certain types of employers, from mandating that their employees provide proof of COV-19 vaccination, and another three states have bills awaiting signature by the state governor.
Given the fast moving deadlines in the Order, many contractors may desire to begin implementing vaccine mandates in their workplace. However, we recommend that contractors contact an attorney familiar with both employment law and government contract law before issuing any vaccine mandate, to ensure that such vaccination policies comply with relevant employment laws and with the implementation details of the Order as they are published. This is especially prudent if the contractor currently operates in a state that prohibits or restricts employer vaccine mandates.
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