Earlier this month, President Joe Biden issued two Executive Orders aimed at stemming the spread of the COVID-19 pandemic by promoting vaccinations. Of particular note to Federal Contractors is the Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors. The Order requires that covered federal contractors comply with “all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.” While the Executive Order does not specifically mandate vaccines, such a requirement is widely expected to be announced by the Task Force.
The Executive Order provides, in relevant part:
Sec. 2. Providing for Adequate COVID-19 Safety Protocols for Federal Contractors and Subcontractors. (a) Executive departments and agencies, including independent establishments subject to the Federal Property and Administrative Services Act, 40 U.S.C. 102(4)(A) (agencies), shall, to the extent permitted by law, ensure that contracts and contract-like instruments (as described in section 5(a) of this order) include a clause that the contractor and any subcontractors (at any tier) shall incorporate into lower-tier subcontracts. This clause shall specify that the contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance or Guidance), provided that the Director of the Office of Management and Budget (Director) approves the Task Force Guidance and determines that the Guidance, if adhered to by contractors or subcontractors, will promote economy and efficiency in Federal contracting. 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 (as described in section 5(a) of this order).
A few points key points about the Executive Order:
- Agencies are required to insert a clause in new contracts (or “contract-like instruments”) requiring compliance with all guidance for contractor and subcontractor workplace locations published by the Task Force;
- This applies to contracts executed on or after October 15, 2021;
- The clause is to be flowed-down to lower-tier subcontractors; and
- The Executive Order carves-out:
- Grants;
- Agreements with tribal entities;
- Contracts or subcontracts below the simplified acquisition threshold;
- Employees performing work outside the United States; and
- Subcontracts exclusively for the provision of products.
We will know more shortly, as by September 24, the Task Force is required to “provide definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions to Task Force Guidance that apply to contractor and subcontractor workplace locations and individuals in those locations working on or in connection with a Federal Government contract or contract-like instrument.” This will provide clearer requirements detailing what concrete steps federal contractors will need to take to ensure compliance with this quickly developing legal and regulatory framework.
Stay tuned.
