As reported in an earlier alert and blog, on September 9, 2021, President Biden rolled out his Path Out of the Pandemic plan (the “Plan”) to combat the spread of COVID-19. Two central portions of the Plan include issuance of (1) an instruction to the Department of Labor Occupational Safety and Health Administration (OSHA) to issue a directive that requires companies with 100 or more employees to ensure their workforces are either fully vaccinated or their workers test negative for COVID-19 on a weekly basis before coming to work, and (2) an Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (EO) that requires that covered government contractors and subcontractors at any tier comply with all guidance published by the Safer Federal Workforce Task Force (or the “Task Force”) that is determined to “promote economy and efficiency in Federal contracting” by the Director of the Office of Management and Budget, for those contractor or subcontractor workplace locations where individuals are “working on or in connection with a Federal Government contract or contract-like instrument.”
Safer Federal Workforce Task Force Guidance May Shed Light on the Forthcoming FAR and OSHA Rules
On September 13, 2021, the Task Force issued guidance on COVID-19 Workplace Safety: Agency Model Safety Principles, which provides direction to government contractors as well as Federal employees. While the Plan and the related FAR rule, OSHA rule and Task Force guidance are yet to be fully defined and implemented, the latest Task Force guidance does provide some data points from which to glean which contractors may be covered by the new rules and what the requirements rolled out may include.
As a backdrop to the guidance, it is important to understand the membership in and purpose of the Safer Federal Workforce Task Force. The Task Force was established by President Biden and includes the White House COVID-19 Response Team, General Services Administration (GSA), Office of Personnel Management (OPM), Centers for Disease Control and Prevention (CDC), Department of Veterans Affairs, Federal Emergency Management Agency (FEMA), Federal Protective Service (FPS), Office of Management and Budget (OMB), and US Secret Service (USSS). The stated aim of the Task Force is to keep Federal agencies and their employees safe and operational during the pandemic. Thus, the Task Force focus is not government contractors per se, but how they interact to keep agencies and Federal employees safe.
The Task Force-issued guidance provides that Federal executive branch employees are to be fully vaccinated by no later than November 22, 2021, unless they are “legally entitled to a reasonable accommodation.” Reasonable accommodation is not defined in the guidance. The guidance does currently provide restrictions on Federal contractor employees not yet subject to a contract requirement for vaccination. It states that if contractor employees are not fully vaccinated or decline to answer the question of whether they are vaccinated, they will be required to wear masks and physically distance. The guidance provides that other restrictions can be added at the agency level for specific Federal buildings or land. Among other things, agencies may establish occupancy limits for specific workplaces to facilitate physical distancing.
Pending incorporation of the EO into government contracts, “onsite contractor employees” who are not fully vaccinated or part of an agency testing program must provide proof of a negative COVID-19 test at least 3 days “prior to entry into a Federal building.” A potential accommodation for contractor employees may be available where they have been participating in agency screening testing programs. While agencies are no longer required to establish a screening testing program for employees and onsite contractor employees who are not fully vaccinated, contractor employees can continue to participate in the agency screening testing programs if the agency chooses to continue those programs. Contractor employees that are regularly tested under such an agency testing program do not need to provide advance proof of a negative COVID-19 test prior to entry into the Federal building unless the agency testing program requires it. Even without a contract clause in their contracts, the guidance provides that the agency is to ask the vaccination status of contractor employees coming to the Federal building and contractor employees responses are to be subject to an attestation of the truthfulness – in other words, contractors and their employees could be subject to false claims liability if they do not accurately represent the status of such personnel.
The Task Force guidance also states that “The Administration’s paramount concern is the health and safety of all Federal employees, onsite contractor employees, and individuals interacting with the Federal workforce.” Taken in conjunction with the stated limits of the EO, this statement in the guidance reinforces the notion that the rule implementing the EO might be limited to only covering those Federal contractor employees who work on site or directly interact with Federal workforce personnel, or that work on Federal construction sites or provide services under leasing contracts. Such an interpretation could reduce the potential scope of the EO. However, it remains to be seen whether the FAR Council or OMB will establish and support a rule with such limited scope.
The guidance also specifies that that CDC’s guidance for mask wearing and physical distancing includes settings involving healthcare, transportation, correctional and detention facilities, and schools.
It further provides that, for Federal employees, getting the vaccination is duty time and so they are not required to take administrative leave. If they cannot get the vaccine during duty hours, then that time will be subject to normal overtime rules. Further, the guidance provides restrictions on all but “necessary mission-critical trips” domestically and that international travel should also be avoided. Individual agencies will issue their own guidance on travel. With regard to meetings, events and conferences, the guidance requires that any such activity involving more than 50 participants must be approved in advance by the agency head in coordination with the agency’s COVID-19 Coordination Team. The vaccination status of all attendees must be sought at such activities.
The guidance’s coverage of Federal employees may lead the way for what will be required of Federal contractors and their employees.
DoD and GSA Notice of Opportunity to Engage on EO Rollout Issues
In the wake of the Task Force’s recent guidance, the Department of Defense (DoD) on September 17, 2021, issued a Notice of an early engagement opportunity on the planning and implementation of the EO. Comments are sought within 7 days, but no later than 30 days after the notice and should be submitted to the DARS website at https://www.acq.osd.mil/dpap/dars/early_engagement.html or via email to firstname.lastname@example.org and reference “Early Engagement Opportunity: E.O. 14042” in the subject line.
Similarly, on September 21, 2021, the General Services Administration (GSA) Ombudsman issued an email notice of interest in comments on the proposed Task Force guidance for government contractors set to issue on September 24. Questions that are specifically identified in the GSA outreach include:
- What concerns do contractors have regarding complying with this mandate
- What burning questions [do] contractors need answered that are not addressed in the Guidance
- What is unclear or confusing about the Guidance/EO.
- What should GSA be thinking about from a federal contractor’s perspective?
- Any other feedback you think we should hear
Responses to GSA are due by midnight September 27, 2021 and should be sent to email@example.com.
Although little time is provided, Federal contractors, subcontractors, and others participating in the supply chain have the opportunity to provide comments on issues arising with rulemaking and implementation of the EO.
A draft FAR rule is scheduled to issue shortly. DoD and GSA stand ready to receive comments to address these and other rollout questions. Many questions remain to be answered – which contractors are covered, where, and will there be exceptions to full vaccination requirements? What if key or sizable numbers of contractor personnel refuse to take the vaccine, or sue to oppose it, can contractors continue to retain them? Can they employ them on government contracts? A number of lawsuits have already been filed; what will happen during the litigation?
Stay tuned to our blog as we will continue to monitor this situation.