Government contractors and subcontractors will need to learn—quickly–how to navigate new COVID-19 requirements. On September 9, 2021, President Biden issued an executive order (the order) imposing COVID-19 vaccine and testing requirements on government contractors and subcontractors. The new requirements will start appearing in contracts in a matter of weeks. Below are the key points that federal contractors need to know.

How will the vaccine requirement be implemented?

The order directs all executive departments and agencies to begin including a new and yet unwritten clause in solicitations, contracts, and contract-like instruments. The clause must state that the contractor will comply with all guidance issued by the Safer Federal Workforce Task Force (Task Force) that pertains to a contractor or subcontractor’s workplace locations.

What does the Task Force guidance say?

The order directs the Task Force to define relevant terms and explain the required protocols by September 24, 2021. Until that guidance is issued, the actual requirements remain a mystery.

However, the Task Force issued vaccine and testing requirements for contractors working at federal facilities earlier this year that may provide some insight. For example, vaccinated contractor employees were required to wear masks indoors only in localities with high rates of COVID-19 transmission. In contrast, unvaccinated contractor employees were subject to a litany of restrictions, including bi-weekly COVID-19 tests, masking, social distancing, and travel restrictions. That said, on September 9, 2021, President Biden issued a separate executive order directing the Task Force to issue new guidance requiring all federal employees to be vaccinated, with no testing alternative, and subject only to limited religious and medical exceptions as required by law. The Task Force’s requirements could ultimately follow either of those examples.

When will we start seeing vaccination requirements?

Very soon. The new clause must be included in any contract or contract-like instruments that are executed, renewed, or extended on or after October 15, 2021. It must also be included in any option exercised on or after that date. There is an exception for new contracts awarded between October 15 and November 15 if the solicitation was issued before October 8, 2021.

Will it apply to subcontractors?

Yes, prime contractors must ensure that the clause flows down to subcontractors at every tier.

Who is going to pay for all of this?

The order is silent on the costs associated with the additional vaccine and testing requirements. The costs should be built into price proposals moving forward, but that is not the case for existing contracts or price proposals that have already been submitted. To the extent that these new requirements give rise to unforeseeable costs on existing contracts or pending awards, contractors should be entitled to additional compensation and time.

What should contractors do for now?

We recommend that contractors notify impacted employees and key subcontractors about the potential for new vaccine and testing requirements, with additional details to follow once the specific requirements are issued.

What else should I know?

The executive orders referenced above were issued within a framework of other vaccine and testing requirements, including new requirements that apply to all private employers with over 100 employees (discussed by our Labor & Employment Group here).

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