Will You Be Required to Get a Vaccine? What You Need to Know About the Mandated Vaccines for Federal Contractors.

On September 9, 2021, President Joe Biden issued two Executive Orders that will require Federal employees and contractors to be vaccinated.[1] The first is the Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees (“Federal Employee Order”), and it requires all Federal employees to be vaccinated with no alternative option for regular testing.[2] President Biden asked the Safer Federal Workforce Task Force (“Task Force”) to produce an “issued guidance” for agency implementation of the Executive Order. The Task Force produced the COVID-19 Workplace Safety: Agency Model Safety Principles (“Task Force Model Principles”), which stipulates that all Federal employees, except in “limited circumstances,” must be vaccinated no later than November 22, 2021.[3] Additionally, when a Federal employee is required to be vaccinated, “the time the employee spends obtaining any COVID-19 vaccination (including travel time) is duty time” and will be compensated. Federal employees will also be compensated for any missed time from work due to a vaccine side effect, as well as time it takes to accompany a family member being vaccinated.[4]

The second Executive Order, The Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (“Federal Contractor Order”), is broader and regulates all contractors working on federal projects.[5] The Federal Contractor Order will apply to construction contracts for federal projects. Unlike the Federal Employee Order, the Federal Contractor Order does not outright require vaccinations for all Federal contractors. Rather, the Federal Contractor Order requires all “contracts and contract-like instruments” to incorporate a clause mandating all contractors and sub-contractors (of any tier) to comply with workplace guidance provided by the Task Force for the duration of the project. The Federal Contractor Order does not affect existing contracts. Specifically, Section 5 of the Federal Contractor Order states that the order applies to:

. . . new contracts; new contract-like instruments; 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 on an existing contract or contract-like instruments, if:

(i) it is a procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property;

(ii) it is a contract or contract-like instrument for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;

(iii) it is a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); or

(iv) it is 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.[6]

However, any change order issued on a project is likely to trigger the Federal Contractor Order. “‘Contract and contract-like instruments’ has the meaning set forth in the Department of Labor’s proposed rule, ‘Increasing the Minimum Wage for Federal Contractors,’ 86 Fed. Reg. 38,816, 38,887 (July 22, 2021).”[7] The Department of Labor’s definition for “contract and contract-like instruments” mandates that it be interpreted broadly so as to include any applicable Federal statute, and explicitly includes “any contract within the definition provided in the Federal Acquisition Regulation (“FAR”) at 48 CFR chapter 1.” The FAR defines “contract” as:

[A] mutually binding legal relationship obligating the seller to furnish the supplies or services (including construction) and the buyer to pay for them. It includes all types of commitments that obligate the Government to an expenditure of appropriated funds and that, except as otherwise authorized, are in writing. In addition to bilateral instruments, contracts include. . . bilateral contract modification.[8]

A contract modification is any written change to the contract. This includes adjustments resulting from the issuance of a change order.[9] Thus, while the Federal Contractor Order does not affect existing contracts, the issuance of a change order may lead to the triggering of the Executive Order.

Additionally, the Federal Contractor Order may cover contracts with a Federal agency, or where Federal funds are involved, but the contract is with the state or local government. The FAR definition for “contract” includes “all types of commitments that obligate the Government to an expenditure.”[10] Therefore, if the Federal Government is providing funds for a State project, it may technically be considered a Federal project for the purposes of the Federal Contractor Order, and thus, subject to the Order.

Federal contractors will also be responsible for ensuring that the required clause is incorporated into subcontracts.[11] The prime contractor must incorporate the clause into the first-tier subcontracts and those first-tier subcontractors are then expected to flow the clause down to the lower-tier subcontractors in similar fashion. No information was provided on the potential penalties for not incorporating the clause into a contract.

The Federal Contractor Order is also rather expansive in who must be vaccinated when the Federal Contractor Order applies. For starters, employees of any prime contractor or subcontractor (of any tier) which is a party to a contract subject to the Federal Contractor Order must be vaccinated unless they fall within one of the limited exceptions. Further, all “covered contractor employees” must be fully vaccinated, unless the employee falls within the limited scope of exceptions provided. “Covered contractor employee” includes all full-time or part-time employees “working on or in connection with a covered contract or working at a covered contractor workplace.” “In connection with,” includes employees who perform necessary duties, but who are not directly engaged in performing the specific work (e.g., human resources, billing, and legal review). The Task Force then defines “covered contractor workplace” as any location controlled by a covered contractor where any employee of the contractor working on or in connection with a covered contract is likely to be present during the period of performance. Finally, the Task Force also stipulated that all employees, even those working remotely, must be vaccinated. Therefore, any employee working for a contractor subject to the Federal Contractor Order, including those never stepping foot on the jobsite, must be vaccinated.

The vaccinations must occur 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.” While “exercised option,” “extended,” and “renewed” have not been precisely defined by the Task Force, they will likely be interpreted broadly as part of the definition for “contract.”

Existing contracts not subject to the Federal Contractor Order will still be subjected to an increased frequency of regular testing.[12] According to the Task Force Model Principles, “onsite contractor employees who are not yet contractually required to be vaccinated and who are not fully vaccinated. . . must provide proof of a negative COVID-19 test from no later than the previous 3 days prior to entry to a Federal building.” The Task Force is also requiring all Federal contractors, including any contractor employee working on Federal grounds, to provide their vaccination status.[13] Responding individuals must attest to the truthfulness of their response, and if the individual declines to respond, the applicable agency “should treat that individual as not fully vaccinated.” Non-fully vaccinated individuals, including those who declined to provide information, must wear a mask and socially distance at all times in addition to testing every three days.

President Biden’s administration has also stated that it wishes to mandate vaccinations or weekly tests on large private companies.[14] The COVID-19 Action Plan – Path Out of the Pandemic (“Biden’s Action Plan”) has a section called Vaccinating the Unvaccinated, which has five listed goals. The first seeks to require all employers with 100+ employees to ensure their workers are vaccinated or tested weekly.[15] President Biden is relying on the Department of Labor’s Occupational Safety and Health Administration (OSHA) to effectuate this plan, and the rule that OSHA is currently developing will “impact over 80 million workers in private sector businesses with 100+ employees.” Currently, OSHA has not published an implementation order for the large company vaccine mandate. Thus, it is unknown whether an “employee” includes part-time employees, though based on the Task Force’s definition, it is likely that both part-time and remote employees will count as an “employee.” However, by comparison, the WARN Act (which also has a 100+ employee requirement) does not include part-time employees.[16] In the WARN Act, a part-time employee is defined as “an employee who is employed for an average of fewer than 20 hours per week or who has been employed for fewer than 6 of the 12 months preceding the date on which notice is required.”[17] It remains to be seen whether this administration will remain consistent with established precedent.

Conclusion

In summary, all direct Federal employees must be vaccinated by November 22, 2021. Federal contractors working on existing projects will not be mandated to receive a vaccine, but if not vaccinated, or decline to disclose vaccination status, will be subject to increased negative testing requirements. Additionally, change orders may be considered a “new contract-like instrument” and subject the jobsite to mandated vaccines. All new contracts and contract-like instruments formed by the Federal government will include a clause that requires the contractors, subcontractors, and all employees thereof, to abide by the Task Force’s guidance. This means that all covered contractor employees subject to the Federal Contractor Order must be vaccinated no later than December 8, 2021. Finally, private companies with 100+ employees may be subject to the same rules once OSHA produces their issued guidance plan.

[1]  Presidential Actions, The White House – Briefing Room, https://www.whitehouse.gov/briefing-room/presidential-actions/ (last visited Sept. 13, 2021).

[2]  President Joseph R. Biden Jr., Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, The White House, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-requiring-coronavirus-disease-2019-vaccination-for-federal-employees/ (last visited Sept. 13, 2021).

[3]  COVID-19 Workplace Safety: Agency Model Safety Principles, Safer Federal Workforce Task Force, p. 2, https://www.saferfederalworkforce.gov/downloads/updates%20to%20model%20safety %20principles%209.13.21.pdf

[4]  Id.; 5 C.F.R. § 630.201(b) (defining “family member” as spouse and parents thereof, parents and spouses thereof, sons and daughters and spouses thereof, brothers and sisters and spouses thereof, grandparents and grandchildren and spouses thereof, domestic partner and parents thereof, and any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship).

[5]  President Joseph R. Biden Jr., Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, The White House, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/ (last visited September 13, 2021).

[6]  The Executive Order does not further detail what an “extension” to a contract would entail.

[7]  COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, Safer Federal Workforce Task Force, p. 2, https://www.saferfederalworkforce.gov/downloads/Draft%20 contractor% 20guidance%20doc_20210922.pdf.

[8]  48 CFR § 2.101.

[9]  48 CFR § 43.103.

[10]  48 CFR § 2.101.

[11]  Safer Federal Workforce Task Force, supra note 13, at 13-14.

[12] COVID-19 Workplace Safety: Agency Model Safety Principles, Safer Federal Workforce Task Force, p. 2,  https://www.saferfederalworkforce.gov/downloads/updates%20to%20model%20safety %20principles%209.13.21.pdf

[13]  Id. (Safer Federal Workforce Task Force, supra note 19, at 6 (accepted documents: a copy of the record of immunization from a health care provider or pharmacy, a copy of the COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on September 3, 2020), a copy of medical records documenting the vaccination, a copy of immunization records from a public health or State immunization information system, or a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of health care professional or clinic site administering vaccine. Covered contractors may allow covered contractor employees to show or provide to their employer a digital copy of such records, including, for example, a digital photograph, scanned image, or PDF of such a record)).

[14]  See President Biden’s COVID-19 Action Plan – Path Out of the Pandemic, The White House, https://www.whitehouse.gov/ covidplan/#vaccinate (last visited September 13, 2021).

[15]  President Biden’s COVID-19 Action Plan – Path Out of the Pandemic, The White House, https://www.whitehouse.gov/ covidplan/#vaccinate (last visited September 13, 2021).

[16]  29 U.S.C. § 2101(a)(1)(A).

[17]  29 U.S.C. § 2101(a)(8).