The federal government’s complex, multi-pronged approach to implementing COVID-19 safeguards related to federal contractors has left many confused. We offer this brief guide to help entrepreneurs understand their obligations and implementation deadlines.
Executive Decree 14042 (September 9, 2021) creates the broadest set of obligations applicable to federal contractors. Where EO 14042 applies, its requirements apply not only to employees working on or in connection with the federal contract covered, but also to all other employees who
share workplaces with or come into contact with these employees in the course of their employment.
There is a lot of confusion as to when OE 14042 goes into effect. In general, the requirements of OE 14042 do not apply to an employer until they have entered into a contract. or a government subcontract that includes a clause requiring compliance. It is possible that some employers will be presented with such contractual clauses as early as mid-October. Other employers with existing federal contracts may not be presented with a covered contract for many months or maybe never. Contractors who are presented with such a clause before December 8, 2021 will have until December 8 to comply. Entrepreneurs who are presented with such a clause after 8 December 2021, either in an initial contract or when exercising an option or an extension, are required to comply immediately; there is no grace period. The lack of a grace period, of course, creates substantial complications given that covered employees must be fully vaccinated for COVID-19 and recently released federal guidelines for contractors provide that employees are not considered fully vaccinated until. two weeks after receiving the second dose of a two-dose series, or two weeks after receiving a single dose vaccine. Therefore, contractors must plan ahead in order to meet compliance deadlines.
Many entrepreneurs have focused on the requirements of OE 14042 relating to vaccination. Entrepreneurs should keep in mind, however, that EO 14042 also includes masking and social distancing requirements that apply even to those who have been vaccinated.
Many contractors also focused on whether they had a contract requiring a clause requiring compliance with EO 14042. Although this is an important survey, based on the Guide encouraging “strongly »Agencies to include a clause requiring compliance even in contracts that are not covered or directly addressed by OE 14042, we expect agencies to to trybroaden the scope of OE 14042 to include, for example, subcontracts for the manufacture of products. More information on other sources of COVID-19 security requirements is discussed below.
Executive Decree 14043 (September 9, 2021) is intended for executive agencies and only applies to executive agencies and their government employees. OE 14043 has nothing to do with federal contractors, except that some government procurement officials or administrators seem confused about the differences between OE 14042 and OE 14043, and may seek to impose restrictions on their contractors. for which there is no legal basis. A contractor who is not yet subject to EO 14042 and who is asked by the government to comply with COVID-19 security requirements is entitled to ask the government to provide the basis for their requests.
Executive Decree 13991 (January 20, 2021) ordered heads of executive departments and agencies to take immediate action, where appropriate and in accordance with applicable law, to require the following individuals to comply with CDC guidelines regarding the wearing of masks, the maintenance of physical distance and compliance with other public health measures: the federal employees on duty or on site; federal contractors on site; and all persons in federal buildings or on federal lands. EO 13991 also created the Safer Federal Workforce Task Force (Task Force).
In accordance with EO 13991, on January 24, 2021, the Office of Management and Budget issued a memorandum to heads of executive departments and agencies providing model security principles and requiring each agency to adopt its own tailored COVID-19 security plan. With input from the Task Force, these plans continue to evolve. The model plan was most recent update on September 13, 2021 and provides, among other things, that:
Employees of the on-site subcontractor who are not yet contractually obligated to be vaccinated and who are not fully vaccinated or who refuse to provide information on their vaccination status must provide proof of a negative COVID-19 test to the no later than 3 days prior to entering a federal building – as noted below, if a contractor’s employee is routinely tested in accordance with an agency testing program, they do not need to provide proof a negative COVID-19 test no later than 3 days before entering a federal building unless the agency’s testing program requires it.
In accordance with these agency plans or in accordance with guidelines implementing the plans, employees of federal contractors who actually work in a federal facility or on federal property may be subject to specific safety requirements at particular federal agencies or even to that facility or property. Therefore, contractors not subject to OE 14042 can still be directed
now by the government to engage in certain practices or may even ask the government to deny access to unvaccinated employees. As noted above, when presented with such guidelines, entrepreneurs have the right to request that the government provide the basis for their demands. We see cases in which agencies seek action from contractors for whom there is no clear legal authority.
Disputes regarding these requirements have already been filed. There will almost certainly be additional challenges, and it is possible that some or all of these requirements will be imposed. Until that happens, however, contractors who aren’t looking to take legal action on their own will likely want to comply with requirements when imposed according to agency security plans or by contract.
An OSHA Temporary Emergency Standard (ETS) is also expected to be released in the coming weeks and will apply to all employers with 100 or more employees. Many healthcare employers are already subject to a separate OSHA ETS that was released in June.
For federal contractors, the requirements of the new OSHA ETS will almost certainly apply more broadly in terms of workers who will be subject to the standard, but could end up being more or less demanding than the requirements EO 14042.
Some federal contractors pay little attention to the anticipated OSHA ETS based on the assumption that their compliance with EO 14042 will likely meet OSHA requirements. However, entrepreneurs should pay attention to both sets of requirements, as well as any applicable state guidelines, as there will likely be differences in scope. Additionally, if a legal challenge results in the prohibition of the requirements of OE 14042, federal contractors may end up being subject only to the OSHA ETS (or vice versa).
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.