Littler

Earlier this month, President Biden released his COVID-19 Action Plan, Path Out of the Pandemic (Plan) with the stated goal of getting more people vaccinated.1 As part of the Plan, President Biden signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (Order). Pursuant to the Order, on September 24, 2021, the Safer Federal Workforce Task Force (Task Force) released Guidance for Federal Contractors and Subcontractors (Guidance). Generally, covered employees must be fully vaccinated by December 8, 2021, unless the covered contractor is legally required to provide an accommodation for a disability or sincerely held religious belief or practice. Contractors must also follow the CDC’s guidance for mask wearing and physical distancing for covered contractor employees and visitors.

Which Employers are Covered by the Order?

By its definition of a “covered contract,” the Task Force makes it clear that it interprets the Order as applying only to contracts or contract-like instruments that actually include language incorporating the requirements of the Order. If the Order continues to be interpreted in this way, then only those employers that enter into a contract or sub-contract with the applicable language will be subject to the requirements of the Order.

Broadly summarized, the Order requires incorporation of the language into government contracts or subcontracts involving services or construction, or those relating to federal property.2 In addition, the Task Force “strongly” encourages executive departments and agencies to impose the same requirements on contracts or subcontracts that are not covered by the Order, including subcontracts for the manufacturing of products, which appear to have been explicitly excluded from coverage by the Order.

The Order directs the Federal Acquisition Regulatory Council (FAR Council) to manage the process by which appropriate language is to be incorporated into federal contracts. Until the FAR Council acts, employers should not expect to see the applicable language in their federal contracts.

The Order instructs the FAR Council and agencies to take action so that the requirements of the Order will be incorporated into covered instruments entered into on or after October 15, 2021. Whether this will (or even can) be done in compliance with the requirements of the Administrative Procedure Act (APA)—the federal law governing rulemaking by federal agencies—is not clear. A failure to comply with the APA could make the requirements of the Order unenforceable.

Which Employees are Covered by the Order?

The Task Force interprets the Order as applying to employees “working on or in connection with a covered contract.” To this extent, the scope of the Order is essentially the same as the Obama-era executive orders establishing a federal contractor minimum wage and paid sick leave benefits.

In addition, the Order is also being interpreted by the Task Force as applying to all employees working at a covered contractor workplace, which the Task Force defines as “a location controlled by a covered contractor at which any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract,” but does not include a covered contractor employee’s residence. Under this definition, many employees who are not working on or in connection with any federal contract will be subject to the requirements of the Order because they share a workspace with another employee who is working on or in connection with a federal contract or subcontract.

The FAQs published with the guidance state that employees working on a covered contract remotely, even if they never work at a covered contractor workplace or federal workplace during the performance of the contract, are covered employees. Thus, while a covered contractor employee’s residence is not a covered contractor workplace subject to masking and physical distancing, these remote employees must be vaccinated unless the covered contractor is legally required to provide accommodations.

What Does the Order Require?

As noted, covered employees must be fully vaccinated by December 8, 2021, unless the covered contractor is legally required to provide accommodations to the covered contractor employee for a disability or a sincerely held religious belief, practice, or observance.

The Guidance defines “fully vaccinated” as two weeks after receiving the second dose in a two-dose series (e.g., Pfizer or Moderna), or two weeks after receiving a single-dose vaccine (Johnson & Johnson/Janssen). Under the Guidance there is no COVID-vaccine booster requirement.

Covered contractors are responsible for determining if a covered contractor employee must be legally provided an accommodation. Covered contractors must collect and maintain proof of vaccination in the form of a CDC record, medical record or immunization record.

The Guidance requires covered contractors to follow the CDC’s guidance for mask wearing and physical distancing for covered contractor employees and visitors. “Mask” is defined narrowly to mean “any mask that is consistent with CDC recommendations as set forth in Types of Masks and Respirators.” This means the following do not constitute a “mask”: masks with exhalation valves, vents, or other openings; face shields only (without mask); or masks with single-layer fabric or thin fabric that does not block light. The Guidance requires covered contractors to provide accommodations to covered contractor employees who communicate to the covered contractors that they cannot wear a mask because of a disability or because of a sincerely held religious belief, practice or observance. This is an expansion of the accommodations OSHA recognizes for masking, which is limited to disability.

Covered contractors are also required to check the CDC COVID-19 Data Tracker County View website weekly for community transmission information in all areas where they have a covered contractor workplace to ensure they are following proper workplace safety protocol.

Finally, the Guidance requires the designation of a person or persons to coordinate COVID-19 workplace safety efforts at a covered contractor workplace. This person(s) may be the same person responsible for implementing other COVID-19 workplace safety protocols.

The Guidance provides answers to 21 Frequently Asked Questions about implementing its requirements. The most instructive are the following:

  • Covered contractors must post signage at entrances to covered contractor workplaces providing information on safety protocols for fully vaccinated and not fully vaccinated individuals.
  • Covered contractors are not required to provide onsite vaccinations but should make their employees aware of convenient locations to be vaccinated.
  • Covered contractors must view or retain a copy of the vaccination card or other approved form of proof of vaccination. Self-attestations of vaccinations by the covered contractor employee is not an acceptable substitute for documentation of proof of vaccine.
  • If the agency that is a party to a covered contract is a “joint employer” as defined by the Rehabilitation Act and Title VII of the Civil Rights Act, both the agency and the covered contractor are responsible to review and consider what accommodations are available.
  • The Guidance supersedes any state or local law that prohibits compliance with any of the workplace protocols set forth in the Guidance.

The Guidance may be updated by the White House Office of Management and Budget and the Task Force as warranted by changes to the circumstances of the pandemic and advice from the CDC. Covered contractors will be required to comply with the updated Guidance.

What is the Timeline for Compliance?

The Order provides a phased-in approach for requiring the Clause in covered contracts. For contracts awarded prior to October 15, 2021, the Clause must be incorporated at the point at which an option is exercised, or an extension is made. For contracts awarded on or after November 14, 2021, the Clause must be included. For contracts awarded between October 15, 2021 and November 14, 2021, the Clause must be included in the solicitation and agencies are encouraged to include the clause in contracts awarded during this time period but are not required to do so unless the solicitation for such contract was issued on or after October 15, 2021.

As noted above, the Guidance requires covered contractor employees to be fully vaccinated by December 8, 2021. After December 8, 2021, all covered contractor employees must be fully vaccinated by the first day of a new covered contract or the first day of an exercised option or extended or renewed covered contract absent the need of an accommodation.

Littler WPI and OFCCP Practice Group will monitor FAR Council activity and report on significant developments.

Footnotes

1 See Jim Paretti, Brad Hammock, David Goldstein, Jeremy Wood, and Devjani Mishra, White House Announces Vaccine Mandates for Employees of Large Private Employers, Federal Contractors, and Most Healthcare Employers, Littler Insight (Sept. 9, 2021); Alka Ramchandani-Raj, Michael Lotito, Brad Hammock, Maury Baskin, and Jim Paretti, President Biden’s COVID-19 Action Plan—What Employers Want to Know, Littler Insight (Sept. 14, 2021).

2 More precisely, the Order states that it shall apply to contracts or subcontracts

(i) for services, construction, or a leasehold interest in real property; (ii) for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
(iii) for concessions
(iv) 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;

The order also specifically states that it shall not apply to:

(i) grants;
(ii) contracts or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act;
(iii) contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold;
(iv) employees who perform work outside the United States or its outlying areas; or
(v) subcontracts solely for the provision of products.

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