On December 7, 2021, a federal judge in Georgia granted a preliminary injunction blocking the COVID-19 vaccine requirement for federal contractors from going into effect nationwide.In doing so, the judge commented that President Biden likely exceeded his authority under the Federal Property and Administrative Services Act (the “Act”) in issuing Executive Order 14042, upon which the vaccine requirement is based.The judge found that Executive Order 14042 is not reasonably related to the purposes of the Act, as it “goes far beyond” addressing procurement and contracting issues and instead works as a public health regulation.The judge also found that compliance with Executive Order 14042 could potentially cause irreparable harm to certain federal contractors due to the business and financial effects of a lost or suspended employee and the compliance and monitoring costs associated with the vaccine requirement.As a result, the Biden Administration is prohibited from enforcing the vaccine requirement for federal contractors until the Georgia court case is resolved or the judge orders otherwise.
On November 20, 2021, a federal judge in Kentucky blocked the COVID-19 vaccine requirement for federal contractors from going into effect in Kentucky, Ohio and Tennessee. The rule remains in effect for federal contractors in all other states.
On September 24, 2021, the Safer Federal Workforce Task Force issued its much-anticipated guidance regarding new COVID-19 workplace safety requirements for federal contractors (the “Guidance”). The Guidance comes in response to a September 9, 2021 Executive Order by President Biden which, among other things, directed the Task Force to mandate that employees of federal contractors be vaccinated for COVID-19.
The Executive Order mandates that all executive departments and agencies ensure that their contracts include a clause that requires federal contractors to comply with all Task Force guidance for workplace locations during the terms of their contracts. The Guidance clarifies that this requirement applies to virtually any procurement action, lease agreement, cooperative agreement, provider agreement, service agreement, license, permit, or any other type of agreement (regardless of whether such contract was the result of a competitive bidding process or awarded to a single party under applicable authority). Accordingly, any federal contractor that has entered such a contract with an executive department or agency, as well as subcontractors, must comply with the following requirements going forward:
The Guidance generally mandates that all employees of federal contractors covered by the Executive Order be vaccinated for COVID-19 no later than December 8, 2021. The Guidance does not permit covered employers to allow employees to submit to frequent COVID-19 testing as an alternative to becoming vaccinated, nor does it provide an exception for employees who work remotely or who have already experienced a COVID-19 infection. The Guidance does, however, direct employers to provide accommodations to employees who cannot be vaccinated due to a disability or a sincerely held religious belief, with the contractor bearing responsibility for determining whether any such accommodation should be granted.
Given the widespread availability of vaccinations, covered contractors are not required to make arrangements for employees to become vaccinated; however, they are responsible for obtaining documentation from each employee which proves that he or she has been vaccinated. Examples of sufficient documentation include a copy of an immunization record from a health care provider, pharmacy, or public health or State information system or a copy of a Vaccination Record Card. A recent antibody test does not constitute sufficient documentation.
Masking and Social Distancing
In addition to the vaccination mandate, the Guidance also requires covered contractors to ensure that all individuals, including employees and visitors, comply with published CDC guidance for masking and physical distancing within the workplace, including CDC guidance for specific workplace settings such as health care facilities, transportation, correctional facilities and schools. With respect to general workplace settings, vaccinated individuals must continue to wear a mask indoors where the local level of community transmission is “high” or “substantial,” but need not wear a mask where the local level is “low” or “moderate.” Individuals who are not vaccinated must wear a mask indoors and in certain outdoor settings regardless of the local level of community transmission. Covered contractors are responsible for checking CDC’s COVID-19 Data Tracker County View website on a regular basis to monitor the local level in their area and adjust masking requirements accordingly. Adjustments should be made as soon as possible in response to an increase in the local level. In contrast, where there is a decrease in the local level, an adjustment may not occur until such decrease has held for at least two weeks.
Regardless of the local level of community transmission, vaccinated individuals are generally not required to socially distance in the workplace. To the extent practicable, however, covered contractors should encourage individuals who are not vaccinated to maintain a distance of at least six feet from others at all times.
Contractors may allow for reasonable exceptions to the Guidance’s general masking and social distancing requirements, e.g., where high-intensity activity makes it difficult to breathe while wearing a mask or while eating lunch in the workplace. An authorized representative of the federal contractor must approve of any such exception in writing.
Designation of Safety Coordinator
Covered contractors must designate an individual to coordinate compliance with the Guidance. Such designee must ensure that all information related to COVID-19 workplace safety guidance is distributed to all employees and available to individuals who visit the workplace, e.g., placing signs that are visible to visitors. The coordinator will also be responsible for collecting and maintaining documentation from each employee that proves the employee has been vaccinated.
While the Guidance answers many employer questions about President Biden’s Executive Order, compliance with the Guidance, particularly with the medical and religious exemption requirements, will continue to raise complicated issues for federal contractors. We will monitor developments and update clients on these issues. In the meantime, clients with contracts with any executive department or agency should take steps necessary to comply with the Guidance, including implementing an employee vaccine requirement.
Foley Hoag has formed a firm-wide, multi-disciplinary task force dedicated to client matters related to COVID-19. For more guidance on your COVID-19 issues, visit our COVID-19 Trending Solutions Page or contact your Foley Hoag attorney.