Federal Contractor Vaccine Mandates Have Arrived. OSHA’s Nationwide Private Sector Mandate is Close Behind.

Federal Contractors Targeted First

On September 9, 2021, President Biden issued Executive Order 14042, an Executive Order on “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” EO 14042 ordered federal departments and agencies to ensure that contracts and contract-like instruments include a clause requiring prime contractors to comply with guidance from the Safer Federal Workforce Task Force. EO 14042 also requires prime contractors to include the same clause in any lower-tier subcontracts, which pushes the same guideline compliance requirement down to subcontractors.

On September 24, 2021, the Safer Federal Workforce Task Force issued the guidance required by EO 14042. In “COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors,” the Task Force issued the following requirements:

• All covered contractor employees must be fully vaccinated for COVID-19 unless they are legally entitled to an accommodation. The deadline for compliance is December 8, 2021.
• All covered contractors 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.
• All covered contractors must designate a person or persons to coordinate COVID-19 workplace safety efforts at covered contractor workplaces.

The guidelines define a “covered contractor” as “a prime contractor or subcontractor at any tier who is party to a covered contract.” A “covered contract” includes every contract other than a contract or subcontract with a value below the $250,000 simplified acquisition threshold or subcontracts “solely for the provision of products.”

The guidelines define a “covered contractor employees” as full-time or part-time employees of any covered contractor “working on or in connection with a covered contract or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.” Employees working outside the United States and its outlying areas are not included.

A “covered contractor workplace” is “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 excludes employee residences.

The guidelines are wide-reaching and essentially require every employee working on or in connection with a federal contract to be vaccinated by December 8, 2021. Working “in connection with” a contract includes those employees who perform human resources, billing, legal review, or other work in support of a federal contract.

BrownWinick has heard from several clients who have questions about complying with or responding to a contractor or the government’s demand to adopt the COVID-19 vaccine mandate clause. Reach out to one of our Construction Law attorneys for assistance.

OSHA Nationwide Mandate Forthcoming

It feels like ages ago that President Biden announced his nationwide vaccine (or testing) mandate for private sector employers with 100 or more employees. We wrote about it more than a month ago. We finally saw some movement on this mandate, which will be carried out through an OSHA Emergency Temporary Standard.

On October 12, 2021, the Department of Labor announced that it had submitted its draft of the Emergency Temporary Standard to the White House for review. After review, the ETS will probably be published on the OSHA website prior to being formally released in the Federal Register. BrownWinick will keep you updated on the status of this mandate.

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