Roadmap for Federal Contractor Vaccine Mandates

This article provides an overview of the Biden Administration’s Executive Orders (EO 14042 and EO 14043), which contain vaccine mandates for federal contractors and subcontractors and a directive to the Occupational Safety and Health Administration (OSHA) to update its Emergency Temporary Standards (ETS) in order to include mandatory COVID-19 vaccination or weekly testing for many private employers. As a roadmap, this article addresses each topic separately, first tackling EO 14042 and its mandates for federal contractors. Then, the article addresses the impending OSHA ETS, which remain unpublished at the time of writing this article.

I. Biden Administration COVID-19 Action Plan

On September 9, 2021, Present Biden issued an update to the COVID-19 Action Plan which consisted of two Executive Orders: Ensuring Adequate COVID Safety Protocols (EO 14042) and Requiring Coronavirus Disease 2019 Vaccination for Federal Employees (EO 14043). President Biden further directed the White House Safer Federal Workforce Taskforce to supply additional guidance regarding the respective orders.

EO 14042: “Ensuring Adequate COVID Safety Protocols for Federal Contractors”

EO 14042 broadly applies to federal contractors. The requirements apply to contractors on covered contracts who perform duties in connection with a covered contract and work at the same workplace as covered employees. Individuals who fall under these categories are required to be fully vaccinated by December 8, 2021, except for those employees who are legally entitled to a medical or religious accommodation. On September 24, 2021, the Taskforce released their “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors,” further defining the requirements set forth in EO 14042.

It remains unclear how the federal government will enforce EO 14042’s mandate, but potential consequences for non-compliance include: contract termination, unwillingness to award future contracts, suspension and debarment, negative performance evaluations, and civil liability or criminal prosecution under the False Statements Act or False Claims Act.

 Who does this apply to?

EO 14042 applies to contractors and subcontractors who have contracts and “contract like instruments,” which according to the Department of Labor definition (expressly incorporated into the Task Force Guidance) means an “agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.” There are no exceptions for commercial-item contracts and the term “contract” includes all contracts and subcontracts at any tier. This covers contracts for services, construction, leases, licenses, permits and agreements to perform work relating to federal property or lands.

The guidance covers three groups of employees:

• Employees working on a covered contract;
• Employees supporting a covered contract; and
• Employees working in location in which an employee in the previous two groups is likely to visit.

As defined in the Guidance, a covered contractor is “a prime contractor or subcontractor at any tier who is a party to a covered contract.” Regarding the last group, the Guidance defines the “Covered Contractor Workplace[s]” as “a location controlled by a Covered Contractor at which any employee of a Covered Contractor working on or in connection with a Covered Contract I likely to be present during the period of performance for a Covered Contract.” Importantly, the Guidance indicates that contractor employees who work remotely must still comply with the vaccination mandate.

It is important to note that EO 14042 expressly does not apply to:

• Grants;
• Contracts/Contract like instructions with Indian Tribes;
• Contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold;
• Employees who perform wok outside the United States or its outlying areas; or
• Subcontracts solely for the provision of products.

What are the requirements?

Covered contractors are required to adhere to the following:

• Verify vaccination through proper documentation;
• Ensure all employees and visitors comply with social distancing and masking requirements; and
• Designate a COVID safety coordinator responsible for coordinating, implementing, and ensuring compliance with safety protocols.

Covered individuals will be contractually obligated to adhere to the vaccine mandate and other safety requirements. Critically, EO 14042 does not allow for optional weekly testing.

EO 14043: “Requiring Coronavirus Disease 2019 Vaccination for Federal Employees”

EO 14043 is directed towards the executive branch agencies and their government employees (as defined in 5 U.S.C. 2015). Government employees who are teleworking or remoting working must also adhere to the order. The Taskforce issued a guidance outlining the vaccine requirement dates, enforcement, and potential consequences. Their guidelines require all federal employees to be fully vaccinated by November 22, 2021. Additionally, it incorporates specific timelines for the vaccines options to qualify as fully vaccinated:

• Pfizer-BioNTech: First vaccination no later than October18, 2021;
• Moderna: October 11, 2021;
• Johnson & Johnson (one shot vaccine): November 8, 2021.

Government agencies are responsible for collecting documented proof of vaccination. Federal employees who refuse to be vaccinated and/or decline to provide proof of vaccination will be subject to disciplinary review up to and including termination.

II. Forthcoming OSHA Emergency Temporary Standard

OSHA has drafted, but not yet released, the ETS requiring private employers with 100 or more employees to mandate vaccination or weekly testing for their unvaccinated employees. On October 12, 2021, OSHA sent a draft of this ETS to the White House’s regulatory office for approval. The ETS is expected to be reviewed and approved by the White House regulatory office any day now, which would prompt OSHA to publish the ETS Federal Register before the end of October. 

As soon as it is published in the Federal Register, the ETS will take immediate effect in the 29 states where OSHA has jurisdiction. The remaining 21 states have approved “state plans” where a state agency enforces safety regulations in that jurisdiction. Once published, state OSHA plans will likely have 15 to 30 days to adopt the OSHA ETS, amend it to be just as or more effective or enact their own standard, or rely on an existing standard that is “just as effective.”

The ETS will likely include specific language noting that it supersedes any state or local law concerning vaccines that is not as strict as ETS. Thus, any state order like the one Texas Governor Abbott issued in Texas will become null and void for employers subject to the ETS. However, during any period of time between the issuance of a state order banning mandates and the adoption of the ETS, employers in such states will be in limbo with respect to their vaccine policies.

As to potential consequences for non-compliance with the ETS, a “serious” violation of an OSHA standard can result in penalties above $13,000 per violation. However, if OSHA determines that a violation is “willful,” i.e., if an employer intentionally disregards a standard’s mandates, or acts with “plain indifference” with respect to the same, OSHA can issue fines of up to $136,532 per violation. In addition to fines, OSHA also often issues press releases announcing violations that can paint companies in a negative light.

While good-faith efforts to implement the required vaccination program will likely not result in heavy-handed enforcement, covered employers who choose not to take the required steps run the risk of incurring significant fines.