Covid Executive Order For Federal Contractors and Large Companies
On September 9, 2021, President Biden ramped up COVID-related safety protocol in two areas by requesting that:
1. The Safer Federal Workforce Task Force (“Task Force”) prepare increased safety protocols for federal contractors which should include mandatory vaccinations; and
2. The Department of Labor issue temporary rules that will require employers of 100 or more employees to require vaccinations.
The Task Force was created in July 2021 to provide oversight to the development and implementation of COVID-19 workplace safety plans across the federal government. In the brief time since its inception, the task force has created protocol for federal employees, contractors and visitors working inside federal buildings or on federal lands or controlled areas.
Federal Contractors
The September 9, 2021 executive order requires the Task Force to issue additional guidance on safety protocol relating to COVID protections for federal contractors and federal employees, including vaccine mandates. By September 24, 2021, the Task Force is to issue protocols required of contractors and subcontractors to comply with workplace safety guidance, any exceptions for contractors and subcontractors as to workplace locations and individuals in those locations working on or in connection with a federal government contract.
Under the executive order, all federal contracts entered into on or after October 15, 2021 will include a clause (currently being developed) requiring that the contractor and any subcontractors (at any tier) comply with all guidance published by the Task Force for the duration of the project. The new requirements apply only to contracts entered into on or after October 15, 2021. Adherence to the guidance is only encouraged for contracts entered into, renewed or extended prior to October 15.
The reach of the executive order is very long. It applies to all contracts and any “contract-like instruments” or subcontracts of any tier, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing.
Employers with 100+ Employees
The executive order also orders the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) to develop an Emergency Temporary Standard (ETS) that will require all employers with 100 or more employees to ensure that their workforce is fully vaccinated or to require any workers who remain unvaccinated to produce a negative test result at least weekly before coming to work. The rule— which is expected to issue within days—will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated and to recuperate if they experience serious side effects from the vaccination.
With an ETS, rather than a normal issuance of a rule by OSHA – which allows for a notice and comment period—employers with more than 100 employees will not have much lead time to comply once the standard is issued. We can expect legal challenges to the standard on many grounds, including challenges to OSHA’s authority to require paid time off for vaccinations and the breadth of the religious exemption.
If you should have any questions about the executive orders or COVID-19 related issues, the attorneys in our Austin and Dallas offices are available to answer any questions you may have. Please contact is at info@gstexlaw.com.
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