COVID Vaccine Mandate for Federal Contractors: A Work in Progress

If you asked for a prototypical example of a work-in-progress, the arc of recent COVID vaccine and testing mandates for federal employees and contractors certainly would pass muster.

President Biden set this arc in motion at the end of July when he announced what I call the vaccine-or-test mandate. Essentially, he directed federal agencies to ensure that people who work at or visit federal worksites are vaccinated or tested for COVID at least once a week. We blogged about that and who bears the costs a few weeks ago (click here).

The arc bent dramatically last week when President Biden issued two Executive Orders (“EO”) that, together, aim for universal vaccination of all federal government and federal contractor employees. See Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees here (“Federal Employee Vaccine EO”) and Executive Order on Ensuring Adequate Covid Safety Protocols for Federal Contractors here (“Contractor Vaccine EO”).

The Federal Employee Vaccine EO directs executive agencies to “implement, to the extent consistent with applicable law, a program to require COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law.” The President gave the Safer Federal Workplace Task Force (“Task Force”) a week (i.e., tomorrow September 16) to issue guidance to agencies for their implementation of this program. While this is straightforward in theory, we’re sure there will be arguments at the margins over those ”exceptions . . . required by law.”

The substance of the Contractor Vaccine EO essentially mirrors the Federal Employee EO insofar as it should ultimately require all contractor employees to be vaccinated. However, forcing contractors to do something usually requires the obligation be made a part of their contracts. Thus, come October 15 (assuming relevant agencies meet their deadlines) all new contracts or “contract-like instruments” must have a clause requiring contractors and their subcontractors to “comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.” The “clause shall apply to any workplace locations (specified by the [Task Force]) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument” but not at locations outside the United States. Without getting into the full list of covered and non-covered types of contracts, the clause must be add to all new service and construction procurement contracts, concessions contracts, and leases with a value in excess of $250,000 (generally speaking). It also will apply to many non-procurement contracts other than grants. A new contract obviously includes new contracts, but also includes contract extensions and renewals, the exercise of existing options and new solicitations.

In the meantime, however, the contract-or-test mandate continues but is being scaled back considerably between now and when the EOs are fully implemented and in contracts. This past Monday (September 13, 2021), the Task Force updated its “Agency Model Safety Principles” posted on the web at https://www.saferfederalworkforce.gov/downloads/updates%20to%20model%20safety%20principles%209.13.21.pdf (“COVID Safety Principles”).

Under this updated guidance, agencies must “work expeditiously so that their employees are fully vaccinated . . . by not later than November 22, 2021.” However, the agencies now are no longer required to conduct a testing program for federal “employees or onsite contractor employees who are not fully vaccinated, although they may do so.” This creates a quirk that might be troublesome for contractors before their covered employees are contractually required to be vaccinated. Between now and then, any unvaccinated contractor employees who work onsite at federal facilities will be required to provide proof of a negative COVID test “no later than the previous 3 days prior to entry to a Federal building.” Under the old guidance, unvaccinated contractor employees had to prove a negative test weekly or twice weekly. Our hearts go out to those contractors who have workforces that are heavily dependent on, shall we say, “vaccine reluctant” employees. Tracking their tests could be quite the challenge.

We are regularly monitoring these evolving requirements and will periodically post new updates.