With much fanfare, on Sept. 9, 2021, President Joe Biden announced, among other wide-ranging proposed requirements for employers generally, a COVID-19 vaccine mandate for federal employees and certain government contractors. The president stated that he signed an “executive order that will require federal contractors to” have their employees vaccinated. (“Remarks by President Biden on Fighting the COVID-19 Pandemic,” Sept. 9, 2021.)
Although this recent announcement regarding government contractors and related announcements from the president have generated substantial headlines, their collective effect is by no means immediate, despite the executive order pertaining to contractors stating that it will take effect “immediately.” (“Executive Order on Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors,” Sept. 9, 2021.) Rather, a closer read of the executive order reveals that it may take some time to take full effect, assuming it remains unchallenged, although it can be assumed that the administration will do everything it can to rapidly deliver on the president’s remarks.
The executive order provides that executive departments, agencies and independent establishments must ensure that all contracts and contract-like instruments include a clause that specifies the contractor or subcontractor will comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force. What that full guidance will ultimately state is unclear, although the executive order further states that the task force, “as part of its issuance,” must provide by Sept. 24, 2021, guidance, definitions and protocols.
But even when the guidance is issued, the executive order states only that it applies to “any new contract; new contract-like instrument; new solicitation for a contract … ; extension or renewal of an existing contract … ; and exercise of an option on an existing contract … .” Thus, it would appear that as rules are developed pursuant to the executive order, they likely will apply only to new contracts, the exercise of an option on a contract or modifications to existing contracts (much like certain wage and benefits requirements have been implemented in recent years). There are also a number of exceptions contained in the executive order; for example, it does not apply to “subcontracts solely for the provision of products.”
With respect to existing contracts, “agencies are strongly encouraged, to the extent permitted by law, to ensure the safety protocols required … are consistent with the requirements specified” in the executive order.
What does all this mean right now? Stay tuned. At present, it is too early to say exactly what will flow from guidance that has not been fully developed. However, all employers, especially federal contractors, will need to closely monitor what flows from the president’s announcement in the coming weeks. We will follow up on further developments.