Friday, September 24, 2021: By Executive Fiat, White House Task Force Suddenly Extended a COVID-19 Vaccine Mandate to Include ALL Employees of Federal Contractors and Subcontractors
The Safer Workforce Task Force issued the new Guidance for Federal Contractors and subcontractors in a 14-page document: “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.” The Task Force neither published nor proposed to publish public Rulemaking before both requiring the vaccination and then expanding President’s Biden authorizing Executive Order to extend the vaccine mandate to all federal contractor/subcontractor employees, including those not working on-site at a federal establishment. The “Guidance” (which the White House Task Force was somehow able to create, review for integrity, review for consistency with other vaccination mandates and applicable law, and publish before the earlier-started OSHA workforce vaccination mandate) provides that:
- COVID-19 vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation;
More Details: “Covered contractor employees must be fully vaccinated no later than December 8, 2021. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.” (pg 5)
Defined: “Covered contractor employee – means any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.” (pg 3 & 4 emphasis added)
Editor’s Note: It is not possible to reconcile the language of the above highlighted Guidance with the much narrower language of President Biden’s Executive Order 14042 which set out the vaccination mandate to start this parade. Here is President Biden’s language from the first sentence of his EO 14042 framing its reach in Section 1 “Policy”:
“This order promotes economy and efficiency in Federal procurement by ensuring that the parties that contract with the Federal Government provide adequate COVID-19 safeguards to their workers performing on or in connection with a Federal Government contract or contract-like instrument as described in section 5(a) of this order.” (emphasis added)
Please note the bald-faced stretch now contained in the Guidance from the EO’s language binding “workers performing on or in connection with” to the broader Guidance language now seeking to bind:
“any *** employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.” (emphasis added)
Editor’s Note: We pointed out in an earlier Blog that the President’s Executive Order 14042 was unenforceable, even in its narrower state, without the Safer Federal Workforce Task Force publishing Rules for Public Comment consistent with the Administrative Procedure Act. See, our WIR from Thursday, September 9, 2021: Two of President Biden’s Four Vaccine Mandates are Likely Unlawful, Without Implementing Rules, While the Other Two are Likely Lawful. The Task Force’s new attempt to further expand President Biden’s Executive Order is another fatal blow to the enforceability of the Task Force’s “Guidance,” which the law will treat as merely advisory: in the way of “Helpful Hints from Heloise.”
What the Task Force should have done, had it wanted to enforce the mandates of its new Guidance, was to first: (a) ask the President to amend and broaden his Executive Order 14042, and then (b) to issue for notice and comment a Notice of Proposed Rulemaking setting out the substance of the Guidance it wishes the contracting officers within the Executive Branch of the federal government to enforce. And, it might have been prudent and wise for the Task Force to also delay its Rulemaking so it could coordinate its substance with that of the coming OSHA Rule…just for the sake of consistency, good science and coordinated administration of similar mandates on federal contractors, most of which are also employers which OSHA covers and will have to comply with both mandates if they become law.
The mistake the Safer Federal Workforce Task Force has made is to confuse its legal authority over federal employees with its authority over federal Government contractors and subcontractors. While the President is the Chief Administrative Officer of the federal government workforce, he is not the “boss” of federal contractors and subcontractors. Accordingly, the President requirements may not just “lean out the window” and shout new orders, but rather must follow the Rule of Law to enforce his policy upon federal contractors/subcontractors.
The next issue for contractors, of course, is going to be what they do to either comply with the Task Force’s Guidance, or choose to simply ignore it as unenforceable.
- Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces;
More Details: “Covered contractors must ensure that all individuals, including covered contractor employees and visitors, comply with published CDC guidance for masking and physical distancing at a covered contractor workplace. Covered contractors must check the CDC COVID-19 Data Tracker County View website for community transmission information in all areas where they have a covered contractor workplace at least weekly to determine proper workplace safety protocols (emphasis added).” (pg. 6)
- Designation by covered contractors of a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.
Guidance or Mandate?
According to the Guidance,
“Covered contractors shall adhere to the requirements of this Guidance. The Director of OMB has, as authorized by Executive Order 14042, approved this Guidance and has, an exercise of the delegation of authority (see 3 U.S.C. § 301) under the Federal Property and Administrative Services Act determined that this Guidance will promote economy and efficiency in Federal contracting if adhered to by Government contractors and subcontractors. The Director has published such determination in the Federal Register (emphasis added).” (pg 2)
Frequently Asked Questions
There are 21 questions in the FAQ section (pages 9-14). Of particular interest is question 11 about remote employees.
Q11: How does this Guidance apply to covered contractor employees who are authorized under the covered contract to perform work remotely from their residence?
A: An individual working on a covered contract from their residence is a covered contractor employee, and must comply with the vaccination requirement for covered contractor employees, even if the employee never works at either a covered contractor workplace or Federal workplace during the performance of the contract (emphasis added).
What Does This Guidance Supersede?
- Any state or local law or ordinance (Q19)
- The Occupational Safety & Health Administration’s (OSHA’s) Guidance (Q20)
- Any previous versions of the Guidance (should it be revised) (Q16)
How We Got Here:
On Thursday, September 9, 2021, we reported that “President Biden Mandates COVID-19 Vaccine for Certain Federal Contractors: Exceptions As Interesting As Who is Covered.” The mandate requires Federal Contractors and Subcontractors to follow Guidance by the Safer Federal Workforce Task Force.
The Executive Order
Executive Order 14042 requires, through a clause the President hopes to cause the U.S. Government Services Administration (GSA) to insert into federal contracts after September 24, 2021, that:
“the contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance or Guidance).”