To ensure “that the parties that contract with the Federal Government provide adequate COVID-19 safeguards to their workers performing on or in connection with a Federal Government contract,” President Biden has issued yet another executive order (EO) mandating that some federal contractors and subcontractors comply with guidance published by the Safer Federal Workforce Task Force.
The vaccine mandate will not go into effect until the director of the Office of Management and Budget (OMB) determines whether guidance developed by the Safer Federal Workforce Task Force will promote economy and efficiency in federal contracting and publishes such determination in the Federal Register. By September 24, however, the task force must provide definitions of relevant terms, explanations of compliance protocols, and any exceptions that apply. This information and additional task force guidance must be approved by the director of OMB, at which time contractors and subcontractors working on or in connection with a federal government contract or contract-like instrument must adhere to the published guidance.
Who Must Comply
Contractors: The executive order applies only to contractors with contracts or contract-like instruments with executive agencies, departments, or instrumentalities valued above the simplified acquisition threshold (currently $250,000) or more for
- The procurement of services, construction, or a leasehold interest in real property;
- Services covered by the Service Contract Act;
- Concessions; and
- Services offered to federal employees, their dependents, and the general public in connection with federal property or lands.
Subcontractors: The EO applies to “subcontractors (at any tier)” to executive-agency contracts for services, construction, or a leasehold interest in real property. However, subcontracts solely for the provision of “products” (interpreted to mean supplies or goods) are exempt, as are services subcontracts equal to or below the simplified acquisition threshold.
Exemptions: The EO does not apply to contracts or contract-like instruments with non-Executive Department agencies or the Government Accountability Office; contracts or contract-like instruments with Indian Tribes; grants; contracts or contract-like instruments equal to or below the simplified acquisition threshold; or contracts performed outside the United States.
“Performing On” or “In Connection With”: Covered contractors and subcontractors must ensure only that their workers “performing on” or “in connection with” one of the types of contracts noted above are vaccinated. The EO does not mandate that all federal contractor employees must be vaccinated, even for those contractors who enter into services or other relevant contracts.
Scope of Contractual Obligations
This executive order, like Biden’s recent EO on minimum wage obligations of federal contractors, applies to any new contract or contract-like instrument as well as any new solicitation, extension or renewal, and exercise of an option on existing contracts or contract-like instruments. By October 8, 2021, the Federal Acquisition Regulatory Council will amend the Federal Acquisition Regulations to include this mandate and executive agencies will take steps to ensure that new contracts, solicitations, and extensions reflect these new requirements.
Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group will continue to monitor developments regarding the Biden administration’s new vaccination policy and will post updates on the firm’s Affirmative Action / OFCCP blog, with any additional news. For further information on the executive order, please join us for our upcoming webinar, “Employers, Uncle Sam Wants YOU to Step Up Your Efforts With Mandatory Vaccination and Testing!” on Friday, September 17, 2021, from 2:00 p.m. to 3:00 p.m. EDT with James M. Paul, Leigh M. Nason, and Andrew L. Metcalf. In addition, we will be hosting a webinar on the U.S. Occupational Safety and Health Administration’s plan to develop and implement a new emergency temporary standard (ETS) regarding vaccinations: “OSHA Hour: COVID-19 ETS Update—Where Does It Stand Now?,” which will be conducted on Thursday, September 16, 2021, from 2:00 p.m. to 3:00 p.m. EDT with Melissa A. Bailey, William S. Rutchow, and Eric E. Hobbs, and Register here for one or both of these important webinars. Important information for contractors is also available via the firm’s podcast programs.