The Biden administration is using different pathways to enforce the President’s Executive Order 14042 which mandates the vaccination of as many American workers as possible in its battle against the Covid19 virus.
Included in that effort are federal agencies, task forces and White House officials who are all sending the message through guidelines, memorandums, and regulatory action. Included in that list so far is the Occupational Safety and Health Administration (OSHA), the Office of Management and Budget, the Federal Acquisition Regulatory Council (FAR) and the Safer Federal Workforce Task Force, a little known part of the administration with a lot of control.
The first set of “guidelines,” which will act as the template for future rules, came from the Task Force September 24 under the heading of Covid-19 workplace safety protocols for Federal contractors and subcontractors. The rules laid down by the Task Force are the template for the other rulemakings to come out of federal (OSHA for example) and state agencies that cover workplace safety.
Biden’s order directed executive departments and agencies to ensure that contracts covered by the order include a clause requiring the contractor—and their subcontractors at any tier—to, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Task Force. To top it off, these workplace safety protocols will apply to all covered contractor employees, including contractor or subcontractor employees in covered contractor workplaces who are not working on a Federal Government contract or contract-like instrument.
Basics for Federal Contractors
Federal contractors and subcontractors with a covered contract must conform to the following workplace safety protocols:
- Covid-19 vaccination of covered contractor employees, except in limited circumstances where an employee is “legally entitled to an accommodation.”
- Compliance by individuals, including covered contractor employees and visitors, with the Guidance related to masking and physical distancing while in covered contractor workplaces; and
- Designation by covered contractors of a person or persons to coordinate Covid-19 workplace safety efforts at covered contractor workplaces.
The Nitty Gritty
Vaccination of Covered Contractor Employees—Covered contractor employees must be fully vaccinated no later than December 8, 2021. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract. Contractor employees working on a covered contract from their residence also must comply with the vaccination requirement for covered contractor employees, but not the masking and distance rules.
Masking and Physical Distancing—Covered contractors must ensure that all individuals, including covered contractor employees and visitors, comply with published CDC guidance for masking and physical distancing at a covered contractor workplace. For the do’s and don’ts on masks go to:
Covid-19 Coordinator Designation—Covered contractors must designate a person or persons to coordinate implementation of and compliance with these workplace safety protocols at covered contractor workplaces. Their responsibilities to coordinate Covid-19 workplace safety protocols may comprise some or all their regular duties.
About “Accommodations” or What Is Commonly Called “Exemptions”—The key phrase in the guidelines is “legally entitled.” Here is where the law comes in:
Medical and Religious Exemptions come from federal and local labor laws. They originate from Title VII of the Civil Rights Act of 1964. The medical/disability connection comes from The Americans with Disabilities Act of 1973 and section 501 of the Rehabilitation Act of 1991. Exemption Rights were strengthened yet again in The Civil Rights Act of 1991 TITLE I – Federal Civil Rights Remedies Damages in Cases of Intentional Discrimination, which added the new rules allowing for the recovery of compensatory and punitive damages in cases of intentional violations.
The one medical exemption that is not allowed is for people claiming prior Covid-19 infection. They still must submit to the vaccination rule under the guidelines.
The Federal Acquisition Regulatory Council (or, FAR Council) on October 8, issued guidance for agencies to—starting on October 15—adding a clause related to these Covid-19 workplace safety protocols to covered Federal procurement solicitations and contracts subject to the Federal Acquisition Regulation (FAR) which includes products made for the government.
Agencies that are responsible for covered contracts and contract-like instruments (i.e., job order contracts) not subject to the FAR also will take prompt action to ensure that those covered contracts include the clause, starting on October 15. Agencies were “strongly encouraged” to incorporate a clause requiring compliance with this guidance into existing contracts and contract-like instruments prior to the date upon which the order requires inclusion of the clause.
Here we go; where we stop, nobody knows.