Federal Contractors and the COVID-19 Vaccination Mandate

In an effort to curb the spread of COVID-19, on September 9, 2021 President Biden announced an Executive Order (Order) Ensuring Adequate COVID Safety Protocols for Federal Contractors mandating federal contractors’ employees receive a COVID-19 vaccination as a condition of employment. This builds off the President’s announcement back in July where these employees only had to attest to their vaccination status or face restrictions. The President has charged the Safer Federal Workers Taskforce (the Task Force) with ironing out the mandate’s specifics by September 24, 2021. Hopefully, they will answer many outstanding questions.

For now, what we do know is the Order is effective immediately; however it expressly states it applies to a contract or contract-like instrument that is entered into, extended, renewed, or has an option exercised on or after October 15, 2021. A “contract-like instrument” will have the meaning set-forth in the Department of Labor’s proposed-rule, “Increasing the Minimum Wage for Federal Contractors.”

Applicable contracts are:

• Services, construction, or leasehold interest in real property;
• Services covered by the Service Contract Act;
• Concessions; and
• Work in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.

There are some explicitly exempt contracts. Specifically, federal grants, Indian Tribes, those contractors working outside of the United States, contracts equal to or less than the simplified acquisition threshold, and subcontractors solely for the provision of products.

We also know the mandate will apply to “any workplace location as specified by the Taskforce where a worker is working on or in connection with a federal government contract or contract-like instrument.”   With this said, it could be interpreted as requiring remote workers and employees working at the contractor’s facility to have to get the vaccine. We hope this will be one of the items the Task Force addresses in greater detail.

Finally, written in the Order are specifics the Task Force must address:

• Definitions to relevant terms for contractors and subcontractors,
• Explanations of the protocol required of contractors and subcontractors to comply with workplace safety guidance, AND
• Any exceptions to the Task Force 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.”

Again, these items will have to be spelled out by September 24. However, this date could be extended.    

Some action items to consider:

• Determine if you are a federal contractor or subcontractor
• Determine your contract applicability
• Determine which form of proof of vaccination you will accept
• Create a COVID-19 Vaccination Requirement Procedure policy  

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