President Biden’s COVID-19 Action Plan Also Requires Federal Contractors to Mandate Vaccine
As detailed in Baird Holm’s recent COVID-19 Information Hub articles, on September 9, 2021, President Biden announced an extensive new COVID-19 Action Plan (“Action Plan”) which includes vaccine mandates for large employers, health care workers, federal employees, and certain federal contractors. These mandates are part of the White House’s new strategy to combat COVID-19 variants and improve vaccination rates.
For federal contractors specifically, President Biden issued an Executive Order directing federal departments and agencies to include a new clause in their contracts going forward. The clause would require contractors to comply with guidance issued by the President’s Safer Federal Workforce Task Force (“Task Force”), which would presumably mandate the vaccine. While it is not yet clear what exactly will be required of federal contractors, the Task Force guidance will be released by September 24, 2021.
These new requirements build upon the President’s order from July 2021, which required contractor employees who work at federal facilities to be vaccinated, or be subject to weekly or twice-weekly testing, along with abiding by other protective measures. The recent Action Plan appears to eliminate the testing alternative, and now focuses on mandating the vaccine for all employees of covered federal contractors and subcontractors who work “on or in connection with a federal contract,” and not just on-site employees. Employees who do not work on or in connection with a covered contract would arguably not be subject to the mandate. While we presume that there may be exceptions for employees who are unable to be vaccinated for medical reasons or sincerely held religious beliefs, any other “opt out” options appear to be non-starters.
The Executive Order will primarily affect new contracts or contract-like instruments, as defined in the Department of Labor’s proposed rule, “Increasing the Minimum Wage for Federal Contractors.” We note that the proposed Minimum Wage rule is not yet final, so the definitions could potentially change. The Executive Order also applies to the solicitation of new contracts and the extension, renewal, or exercise of options on existing contracts or contract-like instruments. The required contract clause should appear in covered contracts by October 15, 2021 and would “apply to any workplace location (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract.” This means that most covered federal contractors would not have to comply with the Task Force Guidance until they (1) enter into a new federal contract or subcontract after October 15, 2021, or (2) renew, extend, or exercise options in an existing contract after October 15, 2021. Notably, the Executive Order does not apply to contracts for products only, grants, or contracts whose value is less than or equal to $250,000.
As with many of the Action Plan items, there is a lot we do not yet know. Indeed, it is questionable whether the Task Force’s forthcoming requirements are even enforceable. Rest assured that we will continue to monitor developments and provide further updates once the Task Force releases its guidance.
Sapphire M. Andersen