As part of a multi-pronged strategy to battle the latest rise in COVID-19 cases due to the Delta variant of the coronavirus, the Biden Administration is mandating a more stringent vaccination policy for the federal workforce, federal contractors, and businesses with more than 100 employees. The overall objective is to reduce the number of unvaccinated Americans, beginning with the millions of workers who are employed by or work with the Federal government.
Executive Order on Requiring COVID-19 Vaccination for Federal Employees
On September 9, 2021, President Biden issued an Executive Order requiring nearly all executive branch agencies to implement programs to require COVID-19 vaccination for their employees, with limited exceptions for legally recognized reasons such as disability or religious objections. The Safer Federal Workforce Task Force is directed to provide guidance on how agencies should implement the new policy within seven days. The White House has announced that federal employees will have about 75 days to get vaccinated, and failure to comply will result in progressive discipline. It will likely be left to the agencies whether or not they will require proof of vaccination or continue to allow employees to attest to their vaccination status.
This Executive Order follows recent announcements by the Department of Defense, the Department of Veterans Affairs, and other federal health agencies stating that they will require COVID-19 vaccinations for many of their employees. Earlier this summer, President Biden mandated that federal workers and government contractors receive the vaccine or comply with strict testing and masking protocols. This latest executive order is a change in current policy, as it eliminates the option of being regularly tested to opt out of the vaccine requirement.
Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors
President Biden also issued an Executive Order aimed at requiring vaccinations for federal contractors. This Executive Order requires the Safer Federal Workforce Task Force to develop specific safety guidance for federal contractors by September 24, 2021, and directs the FAR Council to amend the FAR by October 8, 2021 to include a new FAR clause specifying that the contractor or subcontractor shall, for the duration of the contract, comply with the Task Force’s guidance.
While the Executive Order itself does not specifically mention vaccinations, in his speech announcing the Executive Order, President Biden stated that businesses will need to vaccinate their workforce if they want to do business with the federal government, so we can fully expect the Task Force’s guidance to require vaccinations. With limited exceptions, the Executive Order will apply to almost all new contracts, contract-like instruments, and solicitations, as well as extensions, renewals, or option exercises of existing contracts beginning on October 15, 2021. As it is also possible for agencies to add this new FAR clause to their contracts via modification before the next option period, federal contractors should begin to take steps immediately to prepare for this new requirement.
The Executive Order does not apply to grants, contracts under the simplified acquisition threshold, employees performing work outside the United States, and subcontracts solely for the provision of products.
Businesses with 100 or More Employees Required to Institute “Vaccine or Testing” Policy
The Biden Administration has also announced that businesses who have 100 or more employees will be required to institute a “vaccine or testing” policy. While the emergency rule putting this requirement into place is still forthcoming, here’s what we currently know:
- Covered businesses will need to implement – and enforce – policies requiring their employees to provide proof of full vaccination or weekly negative COVID tests.
- These businesses will be required to give their employees time off to get vaccinated against COVID-19, as well as for any recovery from any side effects from the vaccine.
- It is unclear whether employers will also need to provide paid time off will also unvaccinated employees who opt to undergo weekly COVID-19 testing.
- Based on the Federal government’s actions earlier this summer, it’s highly likely unvaccinated employees will likely need to provide weekly negative PCR test results (versus rapid test results).
- Businesses with 100 or more employees who violate these new requirements – once they become effective – face steep fines, reportedly up to $14,000 per violation.
Even though the emergency regulation itself has not been released yet, based on the vaccination policies already implemented by the Federal government for its own employees (and on-site contractors), covered businesses will likely need to collect affirmations from their employees as to their vaccination status to determine who is and is not vaccinated. Any employee who refuses to provide an affirmation of their vaccine status will likely be subject to the same weekly negative test result requirement.
Some employers who will be covered by these new requirements have already implemented mandatory vaccination policies, which means they are likely well ahead of the game. For those covered companies who have not already put vaccination policies into place, they can immediately get a head start on preparing for this new rule. For those employers, they should consider moving forward with collecting affirmations from their employees on their vaccination status. However, employers do need to be careful in ensuring they are not collecting more information than necessary. Berenzweig Leonard has helped craft simple, easy to use affirmations for employees to sign and can help you with creating these for your business.
Stephanie Wilson is a Partner and Co-Director of Government Contracts at Berenzweig Leonard. She can be reached at [email protected]. Elizabeth Payne-Maddalena is a Senior Associate at Berenzweig Leonard. She can be reached at [email protected].