New Vaccination Requirements Imposed On Government Contractors and Other Employers and Employees

On Thursday, September 9, 2021, President Biden announced new federal COVID-19 vaccination requirements, outlined below, which will be incumbent on federal government contractors and their employees, federal branch employees, as well as private sector employers with over 100 employees.

Federal Government Contractors

President Biden signed an Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors , which provides that that most contracts and subcontracts, both existing and new, include a clause to “specify that the contractor or subcontractor shall . . . comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.” The Order does not explicitly require federal contractor employees to be vaccinated.  However, it requires the Safer Federal Workforce Task Force to provide guidance on vaccination requirements by September 24, 2021 and it is expected that the Task Force will require that contractors and subcontractors their workforces to be vaccinated.

Additionally, this Executive Order requires the Federal Acquisition Regulatory Council to “take initial steps” to provide for an implementing FAR clause to be included in federal contracts.

This Order does not apply to grants, contracts with Indian tribes, subcontracts solely for the provision of products, employees who work outside of the United States, or contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold (which is currently $250,000 except for contingency contracts in which the threshold is $800,000 for contingency contracts performed CONUS and $1.5 million for contingency contracts performed OCONUS).

Executive Branch Federal Employees

 The same day President Biden signed a separate Executive Order requiring that each agency of the Executive branch of the United States Government to implement “a program to require COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law.” In a press conference, White House Press Secretary, Jen Psaki, stated that “federal employees will have about 75 days to be fully vaccinated.” She further stated that those who fail to comply will be subject to disciplinary action and that there would, however, be “limited exceptions for legally recognized reasons, such as disability or religious objections.”

Healthcare Workers

The Centers for Medicare & Medical Services (CMS) will require COVID-19 vaccinations for health care workers who work in health care settings that receive Medicare or Medicaid reimbursement, including hospitals, home health agencies, and nursing homes. Further, such requirement includes all staff, including staff “who are not involved in direct patient, resident, or client care,” such as volunteers.

Employers with 100+ Employees 

President Biden also indicated that the Department of Labor’s Occupational Safety and Health Administration (OSHA) will issue an Emergency Temporary Standard (ETS) that requires all employers with

100 or more employees to mandate vaccinations or test for COVID-19 at least weekly. Additionally, employers must provide paid time off for employees to get vaccinated or recover from a vaccination. Companies that fail to comply may face fines of $14,000 per violation.

What’s Next 

In light of the new requirements, employers should consider taking the following steps:

• Government contractors and subcontractors should determine if costs associated with the new requirements may be billable under their contracts and start to prepare requests for equitable adjustment to obtain reimbursement for any costs associated with compliance these new requirements.
• Develop an internal team to plan for and execute compliance with these new requirements;
• Develop policies and procedures that both adhere to these new requirements and are sensitive to the company culture;
• Communicate with employees about new requirements and expectations;
• Review paid time off and accommodation policies, specifically with respect to mask wearing, vaccinations, testing, and other COVID-19 related safety measures.

As the situation rapidly changes and more guidance is issued, we continually review and adjust our clients’ policies, plans, and workplace procedures to reflect the most recent developments. If you are an employer, we can assist in developing your workplace and vaccination policies to ensure you have a safe and compliant workplace.