On September 9, 2021, the Biden Administration issued an Executive Order “Ensuring Adequate COVID Safety Protocols for Federal Contractors.” While the details are not entirely clear, it appears that in the next few weeks, federal contractors will have to provide evidence of vaccination of their employees working on federal projects.
The Safer Federal Work Task Force has been directed by Executive Order to issue guidelines by September 24, 2021, to define the scope of required Covid-19 safeguards, as well as any exceptions. The Biden Administration has made clear that it expects a vaccine mandate to be included in the guidelines. There will also likely be other requirements, such as masks, testing, and sanitation.
The Executive Order also directs the Federal Acquisition Regulatory (FAR) Council to issue a contract clause by October 8, 2021, incorporating the federal government’s vaccination expectations. Once contractors receive a federal contract with the new vaccination clause, they will be required to implement the vaccination contract clause into their subcontracts. It would not be too surprising if the various contracting agencies attempted to push contractors to accept modifications to their current contracts to include the new vaccination clause.
This Executive Order applies to any new contract or contract-like instrument as well as any new solicitation, extension or renewal, and exercise of an option on existing contracts or contract-like instruments. The Executive Order does not apply to those contracts for less than $250,000 and solely to provide products.
Contractors would be well advised to monitor developments over the next 30 or so days. This includes reviewing Special Task Force Guidance and FAR Council and agency-specific implementations. Although these safety protocols are widely expected to include vaccine mandates, the exact details are unknown and could include personal protective equipment requirements and testing as an alternative.
If you need help interpreting these Executive Orders or the soon to be coming contract language, we recommend you contact an experienced construction attorney.