Following a flurry of announcements and a live speech by the President, the White House is moving forward with several initiatives to reduce the number of unvaccinated Americans, including requiring federal contractor employers to require employees to be vaccinated. Details at this point are still lacking, but the White House appears to be using several executive branch tools to accomplish its overall COVID plan.
The thinking regarding federal “workers” in general has been evolving quickly. White House initially decided to require all federal executive branch employees to either be vaccinated or undergo weekly testing. The delta variant surge prompted the White House to revise that policy and require executive branch employee vaccination with no general opt-out provision (people with disabilities and religious objections can still request an exemption). Then there was talk of extending the vaccine requirement to federal contractors working onsite at federal facilities. Now it appears the administration intends to require federal contractor employers to make sure their workforces are vaccinated regardless of whether or not work is being performed in-person on federal property.
And now we finally have an Executive Order that clears up a few things. The Executive Order is available here and it is worth a read.
Executive branch departments, agencies, and establishments will begin inserting a new clause in federal contracts requiring contractors to comply with all guidance published by the Safer Federal Workforce Task Force for the duration of the contract. There is also a “flow-down” provision extending this requirement to qualifying subcontractors with no tier limit (just like the OFCCP’s existing EO clauses). The Task Force is ordered to issue guidance by September 24, 2021.
The scope of coverage appears to be largely but not quite the same as for the federal contractor minimum wage requirements. The federal contractor vaccine mandate will apply to new contracts, new solicitations, extensions or renewals of existing contracts, and the exercise of any existing contract options. Federal grants, contracts with Indian Tribes, and contracts valued at less than the simplified acquisition threshold are exempted. Contracts solely for the provision of products and contracts for work performed outside the United States and its territories are also excluded.
As for which federal contractor employees are covered, the White House again appears to lean on the federal contractor minimum wage order. The vaccine mandate will only apply to federal contractor employees who perform work “on or in connection with” a federal contract. Determining which employees are covered and which are not will likely be a difficult task for most employers and the order is clearly designed to encourage employers to require vaccination for their entire workforce.
The Executive Order is effective “immediately” and agencies are encouraged to start baking these requirements into contracts as soon as possible. Federal agencies execute most contracts according to the Federal Acquisition Regulations (FAR). The new contract clause will need to be added to the FAR and the FAR Council is ordered to take “initial steps” by October 8, 2021. Federal agencies with contracts that are not subject to the FAR have been ordered to insert appropriate language in such contracts no later than October 15, 2021.
The White House is also ordering the Occupational Safety and Health Administration (OSHA) to develop and implement a new rule requiring private employers with 100 or more employees to ensure their workforce is fully vaccinated or require unvaccinated workers to undergo weekly testing. OSHA has issued COVID-related guidelines in the past, but nothing with any teeth. Here, the agency will issue an Emergency Temporary Standard, not guidelines, and failure to comply can result in fines up to $14,000 per violation, according to reporting in the Washington Post. OSHA has also been ordered to develop a rule by which private employers will be required to provide paid time off for vaccination and/or recovery.
And the administration is demonstrating the power of the purse by requiring vaccinations for workers in most health care settings at organizations that accept Medicare or Medicaid reimbursement. Hospitals, dialysis facilities, home health agencies, etc. are generally not required to accept Medicare or Medicaid, but those that do should understand that federal tax dollars often come with strings attached and should not be surprised at this one.
The White House is also “calling on” entertainment venues to require proof of vaccination or testing for entry, but does not appear to have found any legal authority yet for requiring them to do so.
Much of the “fine print” on these initiatives has yet to be written and there will surely be devils in the details, but the broad strokes are pretty clear. Government and business will carry on and have decided that the best path forward is vaccination. As a result, life for those who choose to remain unvaccinated will start to come with ever more limited options for work and play.
BCGi will continue to monitor for further developments.