New Mandatory Vaccination Requirements for Federal Contractors and Private Employers with 100 or More Employees
Yesterday at 5 p.m. ET, President Biden announced “a six-pronged, comprehensive national strategy…[to] ensure that we are using every available tool to combat COVID-19 and save even more lives in the months ahead, while also keeping schools open and safe, and protecting our economy from lockdowns and damage:” the Path Out of the Pandemic.
The six-prongs of the strategy are: (1) vaccinating the unvaccinated; (2) further protecting the vaccinated; (3) keeping schools safely open; (4) increasing testing & requiring masking; (5) protecting our economic recovery; and (6) improving care for those with COVID-19. Multiple requirements and requests for additional action are encompassed under each prong.
A. Private employers should begin to prepare for the following:
· Vaccinating the unvaccinated: The Occupational Safety and Health Administration (OSHA) will issue an Emergency Temporary Standard (ETS) to implement a requirement that all employers with 100 or more employees must ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.
· Vaccinating the unvaccinated: Furthermore, OSHA will also develop a ETS to require employers with 100 or more employees to provide paid time off for the time it takes for workers to get vaccinated or recover if they don’t feel well after receiving the vaccination.
There is no estimated date when OSHA might issue these new emergency rules; we expect that they will provide details necessary to develop a compliant program.
B. Federal contractors (and subcontractors) should begin preparing for the following:
· Vaccinating the unvaccinated: President Biden has directed, through his Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO”), that upon the Director of the Office of Management and Budget’s affirmation that the updated Task Force Guidance will provide economy and efficiency in federal contracting, the Safer Federal Workforce Task Force will publish (by September 24, 2021) updated Task Force Guidance (“Guidance”). This Guidance will provide an explanation of safety protocols required at contractor and subcontractor workplace locations. While the EO does not explicitly state that federal contractors (and subcontractors) must have a vaccinated workforce, the Path Out of the Pandemic plan states, “The President also signed an Executive Order directing that this standard [requiring all federal executive branch workers to be vaccinated] be extended to employees of contractors that do business with the federal government.”
Effective October 15, 2021, contractors will be required to include, in any “contracts and contract-like instruments” (as defined in the DOL’s proposed rule “Increasing the Minimum Wage for Federal Contractors”), a clause that specifies that the contractor and any subcontractors (at any tier) shall comply with all guidance published by the Safer Federal Workforce Task Force that is applicable to contractor and subcontractor workplace locations. “This clause shall apply to any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.” (emphasis added)
These requirements apply to any new contract or contract-like instrument, any new solicitation for a contract or contract-like instrument, any extension or renewal of an existing contract or contract-like instrument, and any exercise of an option on any existing contract or contract-like instrument that is:
(i) a procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property,
(ii) a contract or contract-like instrument for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.,
(iii) a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b), or
(iv) a contract or contract-like instrument 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.
The requirements will not apply to:
(I) grants,
(II) contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93-638), as amended,
(III) contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold, as that term is defined in section 2.101 of the Federal Acquisition Regulation,
(IV) employees who perform work outside the United States or its outlying areas, as those terms are defined in section 2.101 of the Federal Acquisition Regulation, or,
(V) subcontracts solely for the provision of products.
Please contact us to discuss your organization’s individual circumstances. We will continue to monitor changes as they occur.
