On his first day in office, President Biden signed Executive Order on Protecting the Federal Workforce and Requiring Mask-Wearing (EO), which requires federal agencies to issue guidance that complies with the Center for Disease Control’s (CDC) recommended public health measures for combatting COVID-19, such as physical distancing and mask-wearing. On January 24, 2021, the Office of Management and Budget (OMB), in accordance with the EO, issued a memorandum to assist agencies in preparing their COVID-19 workplace safety plans, and they will have until January 29, 2021, to submit their drafts to the OMB for review. While agency-specific guidance has yet to be published, federal government contractors may want to start implementing requirements now and prepare for agency guidance.
One of the most concerning issues that arises with a mask mandate is how to manage employees who claim they are not able to wear a mask and would like to be excepted from the requirement. The CDC’s guidance acknowledges that it may not be possible to wear a face mask in all possible circumstances and that a few exceptions can be made. These exceptions are specifically for individuals with “sensory, cognitive, or behavioral issues,” those unable to properly wear a face mask, and those who are unable to tolerate one. The OMB notes that additional documentation will be required for these individuals that will be based on Equal Employment Opportunity Commission guidance. Contractors who believe an employee of theirs may meet the mask exemption should ask employees to submit requests for reasonable accommodation in line with company accommodation policies. Some who may be exempt include certain outdoor workers, the deaf or hard of hearing, those with underlying medical conditions, and the disabled. Agencies are tasked with granting exceptions that will certainly cause tensions between the contractor’s assessment of whether the request constitutes an undue burden, whether alternative arrangements can be made, and the agency’s position and process for exceptions. Contractors uncertain about whether their employees are exempt from the mask mandate should contact their contracting officer and counsel for further guidance.
Access to federal buildings and property will continue to be limited and may even be more limited because of the EO, making it difficult or impossible for contractors to enter the facilities they need. The OMB memorandum specifies that occupancy should be no more than 25% where possible. Contractors should begin a dialogue with their contracting officers regarding future accommodations and building access to determine whether they should expect disruption with their work. To the extent not already being implemented, agencies have been instructed to further facilitate remote work. Contractors whose work is further disrupted may have recourse to seek reimbursement for employee wages under Section 3610 of the Coronavirus Aid, Relief, and Economic Security Act, which was extended until March 31, 2021. PilieroMazza has published a blog series on Section 3610, which provides more information regarding its implementation and agency interpretations.
According to the OMB memorandum, each agency will be required to create a COVID-19 coordination team to manage contact tracing efforts and safety protocols. Because of contact tracing efforts and travel restrictions, contractors who have a workforce that is not remote should expect agencies to implement record keeping requirements, including requirements to keep records on employee work locations and any symptoms employees may be experiencing. Records containing any type of health information must be handled properly in accordance with the Americans with Disabilities Act.
Agencies will likely begin releasing agency-specific guidance in the next few weeks. The guidance may provide additional information regarding implementation of the EO and exceptions to the mandate. We will continue to monitor developments as they become available.