On September 9, 2021, President Biden announced that OSHA is working on a temporary regulation applicable to all employers with 100 or more employees that requires employees to be vaccinated or tested weekly. He also signed two executive orders, one mandating all federal employees be vaccinated against COVID-19 and the other mandating federal contractors to implement COVID-19 safety protocols.

The federal employee vaccination mandate requires executive agencies (except the GAO) to “implement, to the extent consistent with applicable law, a program to require COVID-19 vaccination for all Federal employees, with exceptions only as required by law.” The Safer Federal Workforce Task Force is supposed to issue implementation guidance by Thursday, September 16, 2021.

The executive order regarding federal contractors requires all agencies to include a clause in their “contracts and contract-like instruments” that requires contractors and their subcontractors to comply with guidance published by the Safer Federal Workforce Task Force (“Task Force”) for contractor or subcontractor workplace locations and to require their subcontractors to agree to a similar clause. “Contracts and contract like instruments” is defined broadly to coincide with the Department of Labor’s definition of that term in its proposed regulation regarding the minimum wage imposed on federal contractors earlier this year. The definition begins by stating that it “means an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.”

The order expressly does not apply to

• grants,
• contracts or contract-like instruments with Indian Tribes,
• contracts whose value is equal to or less than the simplified acquisition threshold (currently $250,000),
• employees working outside the US, or
• “subcontracts solely for the provision of products.” (I emphasize “subcontracts” here because the order ostensibly still applies to “contracts” solely for the provision of products).

Although the federal contractor order states that it takes effect immediately, two things have to occur before it will have a practical effect:

• First, the order requires the Task Force to issue the guidance by September 24, 2021, and the guidance is not effective until the Director of the Office and Management and Budget approves it and determines that it will create economy and efficiency in Federal contracting.
• Second, a contract has to be entered, renewed, extended or an option exercised on or after October 15, 2021; the order only applies to “new contracts; new contract-like instruments; new solicitations for contracts or contract-like instruments; extensions or renewals of existing contracts or contract-like instruments; and exercises of options on existing contracts or contract-like instruments…” entered into on or after October 15, 2021. The order does not apply to existing contracts but it will apply once they are extended, renewed, or any options are exercised. Agencies are strongly encouraged to ensure that safety protocols required by existing contracts conform with the requirements of the order.