Vaccine requirements for federal contractors: What we know today

By Jeff Ellinport, Division Counsel

In the next 10 days, expect specific guidance on how federal contractors will need to respond to the COVID vaccine mandate from the Biden administration.

On September 9, 2021, President Biden issued an Executive Order “Ensuring Adequate COVID Safety Protocols for Federal Contractors” (the “EO”). This order will require many federal contractors to have their employees either fully vaccinated or subject to regular COVID-19 testing.

Here is what we know 

The EO leaves some of the details regarding the requirements for federal contractors to others. Specifically, the Department of Labor’s Occupational Safety and Health Administration (OSHA) is to issue an Emergency Temporary Standard (ETS) in a few weeks, and the recently created Safer Federal Workforce Task Force (the “Task Force”) is to issue specific federal contractor guidance by September 24.

The EO goes beyond the July Presidential Mandate, which required all federal contractor employees who work onsite at federal facilities to attest to their fully vaccinated status or face repeated testing and other safety protocols (such as masking and social distancing requirements). The EO extends these protocols to employees of federal contractors and subcontractors, even if they do not work in a federal facility.

The EO, however, only applies to employees of federal contractors and subcontractors “working on or in connection with” the following types of federal contracts:

1. Procurement contracts for services, construction, or a leasehold interest in real property
2. Contracts for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.
3. Contracts for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b)
4. Contracts entered into with the federal government in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public

And, the EO expressly exempts the following types of contracts:

1. Federal grants
2. Contracts or subcontracts that are at or below the simplified acquisition threshold, which is currently $250,000, subject to limited exceptions
3. Subcontracts solely for the provision of products
4. Contracts with Indian Tribes and the Indian Self-Determination and Education Assistance Act
5. Employees who perform work outside the United States or its outlying areas

Employees of a contractor which sell only commercial-off-the-shelf (COTS) IT products, for instance, presumably would be exempt, with the caveat that “services” as used above may be ambiguous enough to include cloud, software-as-a-service (SaaS), and software support offerings – even though none of these require on-site work by contractors.     

Contractors should be on the lookout for a clause in each covered contract, modification, or renewal requiring compliance with the guidance to be issued by the Task Force. Further, contractors will be required to flow down this clause to all covered subcontracts at any tier.

It is widely expected that covered contractors will be required to have their employees either certify their fully vaccinated status or produce negative COVID-19 test results on a weekly basis.  But, again, the actual requirements will depend on the guidance eventually released by the Task Force.

The EO requires the Task Force to issue its guidance by September 24, 2021. By October 8, 2021, the Federal Acquisition Regulatory Council must amend the FAR to include the contract clause to implement the requirements of the EO and the Task Force, and contractors should expect to see the new FAR clause in covered contracts no later than October 15, 2021. Given the speed, it appears there will be no opportunity for industry to provide public comment, at least prior to publication of the rule. 

Here is what we don’t know

Until the Task Force issues its guidance, many questions will remain unanswered such as:

• How will employees be able (or be required) to prove their vaccination status, test results, or any religious or medical exemptions?
• For unvaccinated workers, who will be required to pay for their weekly testing? 
• Will these protocols apply to contractor employees who work remotely (e.g., from home) full time?
• Will contractors have a grace period in which to implement the necessary internal processes and policy to comply?

The EO may be subject to legal challenges like those in response to President Trump’s Stereotyping EO last year. One way or the other, however, it would be wise for contractors to start thinking about how to best institute company-wide vaccine mandates and testing protocols – and to follow developments closely as the Task Force issues its requirements on September 24.   

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