September.13.2021
On September 9, 2021, President Biden signed two executive orders in support of his COVID-19 Action Plan. The first is an Executive Order requiring the Safer Federal Workforce Task Force to issue guidance mandating certain COVID-19 safety protocols for federal contractors and subcontractors. The second is an Executive Order requiring vaccination for federal employees. Additionally, although he did not sign an executive order, President Biden announced that he has directed OSHA to develop a rule mandating vaccination or weekly testing for employers with 100+ employees. Below is a quick summary of what President Biden’s actions means for employers.
President Biden’s Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors requires federal contractors to follow COVID-19 workplace safety protocols, although these safety protocols have not yet been published. By September 24, the Safer Federal Workforce Task Force will 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.
While the Executive Order makes no mention of a vaccine mandate for federal contractors and subcontractors, President Biden’s COVID-19 Action Plan and September 9 remarks make it clear that the President expects the Task Force Guidance will include a vaccinate mandate for federal contractors and subcontractors.
The Executive Order also requires covered federal contracts to include a new “contract clause,” to be created by the Federal Acquisition Regulatory Council and requiring contractors and subcontractors to comply with all Task Force Guidance. This “contract clause” will apply starting October 15. Importantly, the new rules will apply only to new federal contracts and existing federal contracts that are renewed or extended and are valued at more than $250,000 (with some limited exceptions). Further, the rules will apply only to employees who perform work in the United States at a worksite where at least one individual is working on or in connection with a Federal Government contract or contract-like instrument. The Executive Order does not apply to grants; contracts or contract-like instruments or agreements with Indian Tribes; or contracts or contract-like instruments with non-Executive Department agencies.
Under President Biden’s COVID-19 Action Plan (he did not issue an executive order for large employers), OSHA will develop a rule requiring employers with more than 100 employees to mandate vaccination or conduct weekly testing for its employees to come to work. Employers will be required to provide paid time off for the time it takes to get vaccinated and to recover from any vaccination-related symptoms. The requirement will be implemented through the Emergency Temporary Standards (ETS).
At present, it’s not clear if the vaccine mandate will apply to remote workers. Additionally, it appears employers will still need to abide by their legal obligations to reasonably accommodate individuals with disabilities and employees with sincerely held religious beliefs when warranted.
On September 9, President Biden also signed Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. The executive order requires executive branch agencies to set up a program requiring vaccinations for all federal employees. Although there is no “effective date,” the White House Press Secretary said federal employees will have 75 days to get vaccinated. Although this executive order does not apply to private employers, it is the same Task Force responsible for issuing the COVID-19 workplace safety protocols for employers with 100 or more employees. The Task Force is required to issue its plan for federal employees a week earlier (September 16) than the workplace safety protocols for large private employers, so the guidance may be useful regarding what to expect for private employers.
Although we are still awaiting further details, employers covered by these new mandates should begin plans to prepare mandatory vaccination or testing procedures for their workforce, work with legal counsel to develop a process for employees to request reasonable accommodations, and keep an eye out for further developments over the next few weeks.