The federal government’s complicated, multi-pronged approach to implementing COVID-19 security precautions related to federal contractors has puzzled many. We offer this quick guide to help contractors understand their commitments and deadlines for implementation.
Executive Order 14042 (September 9, 2021) creates the broadest range of obligations that apply to federal contractors. If EO 14042 applies, its requirements do not only apply to employees Working on or in connection with the covered federal contract, but also to all other employees who
share jobs with such employees or come into contact with them as part of their employment.
There is great confusion about when EO 14042 will take effect. In general, the requirements of EO 14042 do not apply to an employer until they actually enter into a government contract or subcontract that contains a compliance clause. It is possible that some employers will be presented with such contractual clauses as early as mid-October. Other employers with existing federal contracts may be presented with an insured contract for many months or perhaps never. Contractors to whom such a clause is presented before December 8, 2021 will have until December 8 to comply with it. Contractors who are presented with such a clause after December 8, 2021 either in an initial contract or at the time an option is exercised or extended are expected to comply with it immediately; there is no grace period. The lack of a grace period naturally leads to significant complications, as the insured employees must be fully vaccinated against COVID-19 and the recently issued federal guideline for contractors provides that employees are not considered fully vaccinated until two weeks after vaccination, the second dose in a series of two doses or two weeks after receiving a single dose vaccine. Accordingly, contractors must plan ahead to meet compliance deadlines.
Many contractors have focused on the requirements of EO 14042 related to vaccinations. However, contractors must note that EO 14042 also contains mask and distance requirements that also apply to vaccinated persons.
Many contractors have also focused on whether they have a contract that requires a clause to comply with EO 14042. While this is an important investigation, based on the guidelines, they “strongly” encourage agencies to include a clause requiring compliance even in contracts that are not recorded or directly addressed by EO 14042, we expect the agencies to do so Tryto expand the scope of EO 14042, for example to include subcontracts for the manufacture of products. More information on other sources of COVID-19 security requirements is discussed below.
Executive Order 14043 (September 9, 2021) is aimed at executive bodies and only applies to executive bodies and their government employees. EO 14043 has no relevance to government contractors other than that some government contract officials or administrations seem confused about the differences between EO 14042 and EO 14043 and may be trying to impose restrictions on their contractors for which there is no legal basis. A contractor who is not yet subject to EO 14042 and who is required by the government to comply with COVID-19 security requirements can request the government to provide the basis for their inquiries.
Executive Order 13991 (January 20, 2021) instructed heads of executive departments and agencies to take prompt action, as appropriate and in accordance with applicable law, to ensure that the following individuals comply with CDC guidelines on the use of masks, physical distancing, and Require compliance with other public health measures: -duty or local federal employees; state local contractors; and all persons in federal buildings or on federal land. EO 13991 also created the Safer Federal Workforce Task Force (Task Force).
Pursuant to EO 13991, the Office of Management and Budget issued a memorandum to the heads of executive departments and agencies on January 24, 2021, containing model security principles and asking each agency to adopt their own bespoke COVID-19 security plan. With the contributions of the Task Force, these plans will evolve. The model plan was last updated on September 13, 2021 and provides, among other things, that:
Employees of the contractor on site who are not yet contractually obliged to vaccinate and who are not fully vaccinated or who refuse to provide information on their vaccination status must prove a negative COVID-19 test at least 3 days before entering a federal building – as stated below, if If a contractor of a contractor is regularly tested in accordance with a government agency’s testing program, they do not need to provide evidence of a negative COVID-19 test no later than 3 days prior to entering a state building, unless the agency’s testing program requires it.
According to these departmental plans or according to the implementation ordinances of the plans, employees of federal contractors who actually work in a federal institution or on federal land may be subject to security-related requirements specific to the federal agency or just for this institution or property. Accordingly, contractors who are not subject to EO 14042 can still be instructed
now by the government to engage in certain practices or may even result in the government denying access to unvaccinated employees. As noted above, when presented with such guidelines, contractors have the right to request the government to base their inquiries on. We see cases where agencies require contractors to take action for which there is no clear legal authority.
Litigation regarding these requirements has already been filed. There will almost certainly be additional challenges, and it is possible that some or all of these requirements will be imposed. Until that happens, contractors who do not want to initiate a legal challenge themselves but who are likely to want to meet the requirements if imposed according to agency security plans or contractually will become contractors.
A Temporary Emergency Standard from OSHA (ETS) is also expected to be published in the next few weeks and applies to all employers with 100 or more employees. Many healthcare employers are already subject to a separate OSHA ETS, which was released in June.
For state contractors, the requirements of the new OSHA ETS will almost certainly be broader in terms of the workers subject to the standard, but may end up being more or less demanding than the requirements of EO 14042.
Some state contractors pay little attention to the expected OSHA ETS, assuming that compliance with EO 14042 is likely to meet OSHA requirements. However, contractors should review both requirements as well as any applicable government guidelines as there will likely be some differences in scope. Should a legal challenge result in the EO 14042 requirements being imposed, state contractors may end up being subject only to the OSHA ETS (or vice versa).
The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.