Last week on September 9, 2021, President Biden issued two Executive Orders as part of his plan to end the COVID-19 pandemic. One of these Orders (EO 14042) focused exclusively on federal government contractors and their employees (the Order). This new Order contradicts policy positions issued by the Biden administration in late July (see here) that allowed individuals to opt out of the vaccine subject to testing and other requirements. Under this new Order, all contractor employees who work at or need to enter a Government facility (covered employees) must be vaccinated, with limited exceptions for medical or religious purposes.

The Order will apply to all employees working pursuant to contracts issued on or after, or for which options to extend are exercised on or after, October 15, 2021. This means contractors have approximately 30 days to put policies and procedures in place to ensure that their covered employees are fully vaccinated.

Additional guidance will be forthcoming, but because time for implementation is short, some things that contractors can do now include 1) identifying as early as possible the contracts and covered employees who will be affected by the Order; 2) communicate as early as possible to all employees and especially the covered employees, the requirements of the Order; 3) start examining potential exemptions and accommodations; and 4) get guidance from contracting officers concerning whether costs of implementation (testing and vaccination) are billable.

This Order tasks the Safer Federal Workforce Task Force to publish guidance (“Task Force Guidance”) by September 24th. This Task Force Guidance will provide definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions to Task Force Guidance that apply to contractor and subcontractor workplace locations and individuals in those locations working on or in connection with a Federal Government contract or contract-like instrument.

While this Guidance is still forthcoming, on September 13th, the Task Force issued updated COVID-19 Workplace Safety Guidance that can be found here. Under this recent requirement, all Federal employees must be fully vaccinated, except in limited circumstances where an employee is legally entitled to a reasonable accommodation, by November 21, 2021. It is highly likely that the follow-on guidance to contractors will be very similar.

The President has tasked the FAR Council with creating a FAR Clause to implement these requirements. The Council has until October 8th to publish this new regulation. All new contracts, new option years, and likely contract modifications shall include these new regulations.

For those contractors and individuals questioning the legal framework of the Order, the bottom line here is that the Administration is using Federal Procurement processes to promote a public policy initiative. This is a common practice that goes back decades and has covered everything from equal opportunity regulations to environmental and green building standards. The Government has broad sway in implementing policies through the acquisition process and has done so many times. Thus, at least as far as covered employees and contractors are concerned, these polices will most likely survive any legal challenges.

For more information, contact MWL Counsel Lewis Rhodes.