Update – September 30, 2021: The Task Force issued a set of FAQs regarding the Guidance. Anticipating the upcoming release by OSHA of the ETS (see below), the FAQs make clear that covered contractors and subcontractors must comply with the Guidelines – which do not contain a testing option – regardless of whether they also are subject to other workplace safety standards. The FAQs also specify that the Guidelines are promulgated under federal law and supersede any contrary state or local law or ordinance, including those that would prohibit vaccine mandates. Further, the FAQs clarify that contractors are not required to provide onsite vaccination to their employees.

Significant questions remain concerning the mandate’s scope and coverage, and any consequences for noncompliance. Please continue to follow our Alerts for updates concerning these issues.

Update – September 24, 2021: The Safer Federal Workplace Task Force issued Guidance setting a deadline of December 8, 2021 for covered contractor employees (except those who are legally entitled to an accommodation) to be fully vaccinated against COVID-19. 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. Contractor employees working on a covered contract from home must comply with the vaccination requirement. Covered contractors also 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, as detailed in the Guidance. Finally, covered contractors must designate a person or persons to coordinate implementation of and compliance with the Guidance and its workplace safety protocols at covered contractor workplaces.

Original – September 10, 2021: As part of a multipronged effort to attack the spread of COVID-19, President Joseph Biden issued an executive order (EO) on September 9, 2021 that ramps up safety protocols for federal contractors to include mandatory vaccinations.

The EO also directs the Department of Labor to issue temporary rules that will similarly impact more than 80 million workers in private sector businesses with 100 or more employees.

Federal Contractors and Subcontractors

The stated aim of the EO is to decrease worker absences, reduce labor costs and improve the efficiency of contractors and subcontractors at sites where they are performing work for the federal government by ensuring that federal contractors and subcontractors are adequately protected from COVID-19.

The EO directs that all federal contracts entered into on or after October 15, 2021 include a clause (to be developed) that the contractor and any subcontractors (at any tier) shall incorporate into lower-tier subcontracts specifying 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.

By September 24, 2021, the Task Force is directed to issue guidance that includes definitions of relevant terms, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, as well as any exceptions.

The guidance will not preempt any stricter state or local law establishing more protective safety protocols. If there is a more protective federal law, regulation, or agency instruction for contractor or subcontractor employees working at a federal building or a federally controlled workplace, then the stricter requirement is controlling.

The scope of the EO is broad. It applies to all contracts and any “contract-like instrument” or subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing.

Although the EO is effective immediately, the new requirements apply only to contracts entered into on or after October 15, 2021. Adherence to the guidance is encouraged for contracts entered into, renewed or extended prior to October 15.

All Private Employers With 100+ Employees

The EO also calls for the issuance of a rule by the Department of Labor’s Occupational Safety and Health Administration (OSHA) – currently in development – that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.

OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This rule also will impact some public employers depending upon the state.

In addition, OSHA is developing a rule to require employers to provide paid time off for workers to get vaccinated or to recover from side effects post-vaccination. A temporary rule requiring paid leave currently applies to certain employers in health care settings. It is likely that this rule will be challenged in court as beyond OSHA’s authority.

Certain Healthcare Employers

The Centers for Medicare & Medicaid Services (CMS) is also taking action to require COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, including but not limited to hospitals, dialysis facilities, ambulatory surgical settings and home health agencies.

This action will apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care. These requirements will apply to approximately 50,000 providers and cover a majority of health care workers across the country.

Details to Come

Many important details remain to be decided when the guidance and rules are issued, including deadlines to get vaccinated, masking requirements, methods of verifying proof of vaccination and other protocols.

However, these new requirements will not entirely abate the significant challenge employers face in conducting individualized reviews of requests for exemptions from vaccinations on account of disability or religion.

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