President Biden Issues Executive Order Requiring COVID-19 Safeguards for US Government Prime Contractors and Subcontractors

The Biden Administration published an Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (EO) on Thursday, September 9, 2021 that many are describing as a “vaccine mandate” for federal contractors. President Biden's speech introducing the EO cast it as a vaccine mandate, but the EO is silent on what COVID safety protocols, including vaccination requirements, the government will ultimately require for contractors. Instead, the EO directs the Safer Federal Workforce Task Force (Task Force) to promulgate contractor workplace COVID-19 safety protocols by September 24, 2021. Although the precise details of these new guidelines are not yet available, the EO provides a framework for their development and implementation.¹

Business executives, human resources professionals and legal staff should follow these developments closely, as the breadth of the potential vaccination and other safety requirements have the potential to affect numerous industries in a relatively short timeframe, including defense, telecommunications, banking, pharmaceuticals, and others.

Implementation Timeline

• Safer Federal Workforce Task Force. The EO directs the Task Force to provide guidance on the COVID safety protocols no later than September 24, 2021.² This guidance will include “definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workforce safety guidance, and any exceptions to Task Order Guidance that apply to contractor and subcontractor workplace locations and individuals working in those locations working on or in connection with” a covered contract (defined below).³ The Director of OMB must review that Guidance and determine it will “promote economy and efficiency in Federal contracting if adhered to by Government contractors and subcontractors” before it enters into effect.⁴
• Federal Acquisition Regulation (FAR) Clauses. After the director of the OMB approves the Task Force Guidance, the FAR Council must take initial steps to issue new solicitation and contract clauses implementing that guidance.⁵ No later than October 8, 2021, the EO requires the FAR Council to “implement appropriate policy direction to acquisition offices for use of the clause by recommending that agencies exercise their authority under” FAR Subpart 1.4, which covers FAR class deviations.⁶
• Agency Implementation. Once the FAR Council issues its October 8, 2021 directives, agencies have a tight turnaround to implement those policies. The requirements apply to FAR-covered contracts and solicitations issued or extended (including through option periods) on or after October 15, 2021.⁷ For Other Transaction Agreements (OTAs) and other agreements not subject to the FAR, agencies must meet the same October 15, 2021 deadline and incorporate provisions that align with Task Force Guidance.⁸

Covered Contracts: The EO adopts the definitions of “contract” and “contract-like instrument” that apply to US Government contractor minimum wage requirements.⁹ In sum, the EO does not apply to all existing contracts and has several limitations on the types of contracts covered. The EO applies to “any new contract” or “contract-like instrument” and “new solicitation” and must be incorporated into existing contracts or contract-like instruments where an agency extends the contract or exercises an option.¹⁰ Thus, by the EO’s terms, agencies are not necessarily required to modify existing contracts to incorporate the safeguards, but they are strongly encouraged to do so.¹¹

The requirements are further restricted to contracts or contract-like instruments that exceed the Simplified Acquisition Threshold (SAT) (currently $250,000, with some exceptions)¹² and:

(1) are “for services, construction, or a leasehold interest in real property”;

(2) are subject to the Service Contract Act (41 U.S.C. §§ 6701, et seq.);

(3) are “for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. § 4.133(b)”¹³; or

(4) relate to “Federal property or lands” and relate “to services for Federal employees, their dependents, or the general public.”¹⁴

The requirements will not apply to grants, agreements with Indian tribes that fall under the Indian Self-Determination and Education Assistance Act, contracts and subcontracts at or below the SAT, personnel performing work in connection with contracts and subcontracts “outside the United States or its outlying areas,” or “subcontracts solely for the provision of products.”¹⁵ The EO does not directly address prime contracts for products, instead referring only to subcontracts. This omission will presumably be resolved through implementing regulations.

Affected Employees. The EO is ambiguous as to the scope of employees subject to the anticipated requirements. Initially, the EO states that the requirements will “apply to any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a [covered contract].”¹⁶ In the very next section, however, the EO suggests narrower coverage that applies only to personnel supporting covered contracts. There, the EO states that the anticipated requirements “apply to contractor and subcontractor workplace locations and individuals in those locations working on or in connection with a [covered contract].”¹⁷ Ambiguities like this make it difficult—if not impossible—for contractors to assess the reach of the EO until the Task Force publishes OMB-approved Guidance.

In sum, contractors must monitor developments over the next approximately 30 days. This includes reviewing Task Force Guidance and OMB policies and approvals as well as FAR Council and agency-specific implementations. Although these safety protocols are widely expected to include vaccine mandates, the exact contours are unknown and could include personal protective equipment requirements and testing as an alternative. 

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.