President Biden has announced a series of measures aimed at combatting the COVID-19 pandemic which will require certain employers to set forth mandatory vaccination requirements. These measures direct the Department of Labor’s Occupational Safety and Health Administration (OSHA) and the Safer Federal Workforce Task Force (Task Force) to set forth specific guidance, which we are still awaiting. However, here is what we know now:
OSHA Emergency Temporary Standard
According to President Biden’s September 9, 2021 briefing, OSHA has been tasked with developing an Emergency Temporary Standard (ETS) requiring companies with 100 or more employees to require employees be vaccinated against COVID-19 or be tested on a weekly basis. The ETS will also require these companies to provide paid time off for the time it takes workers to get vaccinated or to recover if they are under the weather post-vaccination. The fines for violating this rule are reported to be $14,000 per violation.
Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees
This Executive Order was issued on September 9, 2021 and requires the COVID-19 vaccination for all federal employees, subject to such exceptions as required by law in order to promote the health and safety of the federal workforce and the efficiency of the civil service.
The Order directs all agencies (as defined in 5 U.S.C. § 105 as an executive department, a government corporation, and an independent establishment, but excluding the Government Accountability Office) to implement a program requiring the COVID-19 vaccination for all federal employees, with exceptions only as required by law. The Task Force is required to issue guidance within seven days on agency implementation with respect to this initiative.
Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors
This Executive Order was also issued on September 9, 2021 and requires all federal contracts and contract-like instruments to include a clause confirming that the contractor and any subcontractor (at any tier) will comply with all approved guidance published by the Task Force. The Task Force has been tasked with setting forth the workplace safety guidance protocols for contractors and subcontractors by September 24, 2021.
This Executive Order applies to any new contract; new contract-like instrument; new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option of an existing contract or contract-like instrument; if it meets any of the following criteria:
- A procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property.
- A contract or contract-like instrument for services covered by the Service Contract Act.
- A contract or contract-like instrument for concessions, including any concessions contract excluded by the DOL regulations at 29 C.F.R. 4.122(b).
- A contract or contract-like instrument entered into with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.
This Executive Order does not apply to grants, contracts with Indian Tribes under the Indian Self-Determination and Education Assistance Act, contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold, employees performing work outside of the U.S. or outlying areas, or subcontracts solely for the provision of products.
We will provide updates as future guidance is issued.