[Editor's Note (12/07/21): A second court―the U.S. District Court for the Southern District of Georgia―has issued an injunction halting enforcement of the federal contractor vaccine mandate on a nationwide basis. The district court’s order is here, and we expect the White House will appeal the ruling. In the meantime, as of this writing, all three of President Biden’s vaccine mandates―for federal contractors; private employers with 100 or more employees; and healthcare workers at institutions that accept Medicare or Medicaid patients―have been halted nationwide by the courts.]
[Editor's Note (12/06/21): This article includes an update regarding a challenge to, and the temporary suspension of, the vaccine mandate for federal contractors under President Biden’s Executive Order 14042. While the mandate applies to all covered federal contractors in the U.S., the injunction is limited to Kentucky, Ohio and Tennessee.]
Update: Court Halts Enforcement of Federal Contractor Vaccine Mandate in Kentucky, Ohio and Tennessee
On November 30, 2021, the U.S. District Court for the Eastern District of Kentucky issued a preliminary injunction halting enforcement of the federal government’s mandate in Executive Order 14042 requiring all covered employees of federal contractors to be vaccinated against COVID-19. This temporary stay comes on the heels of an order recently issued by the U.S. Court of Appeals for the Fifth Circuit enjoining enforcement of a similar mandate, the Emergency Temporary Standards (ETS) issued by the Occupational Safety and Health Administration (OSHA), that would require mandatory vaccination or weekly testing in the alterative, for most employees of companies with 100 or more employees.
However, unlike the Fifth Circuit’s nationwide stay, the Kentucky court’s temporary stay is limited to federal contractors and sub-contractors on covered contracts only in the states of Kentucky, Ohio and Tennessee. In granting the preliminary injunction, the district court relied upon three grounds, finding that the Biden administration had exceeded its authority in issuing Executive Order 14042:
- Congress’s grant of authority under the Federal Property and Administrative Services Act (FPASA) did not authorize the President to impose a vaccine mandate on federal contractors because that mandate is not closely tied to the purpose of FPASA, which is to promote “economy and efficiency in federal contracting.”
- The vaccine mandate violates the Competition in Contracting Act because “contractors who ‘represent  the best value to the government’” but choose not to follow the vaccine mandate would be barred from competing for government contracts.
- The vaccine mandate violates the Tenth Amendment of the U.S. Constitution, intruding on powers—the regulation of health and safety matters—traditionally reserved to the states.
The January 18, 2022, compliance deadline for full vaccination under Executive Order 14042 (which requires covered employees to have received their final vaccine dose no later than January 4, 2022) still remains in effect for all states other than Kentucky, Ohio and Tennessee.
However, the mandate is being challenged in other jurisdictions as well, and it is possible additional injunctions covering more states will be issued. If the federal government appeals the district court’s ruling, the appeal will be heard by the U.S. Court of Appeals for the Sixth Circuit, which is also hearing the challenges (including the Fifth Circuit’s) to OSHA’s ETS.
HERO Act Plans Remain In “Active” Status for New York State Employers
On September 6, 2021, New York’s Commissioner of Health designated COVID-19 as an airborne infectious disease under the Health and Essential Rights Act (HERO Act)—an existing law requiring all private New York employers to adopt a workplace safety plan (HERO Act plan) to prevent the spread of COVID-19 and other airborne infectious diseases (as we reported on previously here).
This designation required employers to activate their existing HERO Act plans (or adopt a HERO Act plan if they had not already done so and then promptly activate it). While the Commissioner of Health’s original designation expired on September 30, 2021, it was just announced that the designation will be extended until October 31, 2021 (at which time it will be reevaluated).
Accordingly, HERO Act plans remain in active status and employers should take the following steps to ensure compliance:
- Confirm a HERO Act plan has already been adopted. Employers were required to have adopted their HERO Act plans by August 5, 2021. If a HERO Act plan is not currently in place, employers should adopt a compliant plan as soon as possible and disseminate it to their employees (regardless of whether the plan is required to be in active status). A model HERO Act plan suitable for most workplaces was published by the New York Department of Labor (NY DOL).
- Activate the HERO Act plan. Employers should review their HERO Act plan and ensure it is compliant with applicable requirements. The model plan contains detailed guidance as to the specific protocols and procedures employers must implement when in active status, including with regards to employee health screenings, face coverings and social distancing.
- Provide employees with easily-accessible copies of the HERO Act plan and deliver a “verbal review.” Employers should make the HERO Act plan readily accessible to employees by posting it at the worksite and making it available via the employer’s intranet or other means. While the phrase “verbal review” is not defined in the applicable statute, employers are advised to conduct a basic training session (which can be done virtually) to review their HERO Act plan.
- Include the HERO Act plan in the employee handbook. If an employer maintains an employee handbook, the HERO Act should be published in the handbook, which can be accomplished by attaching it as an addendum.
- Plan to establish a workplace safety committee. Employers with 10 or more employees must permit employees to establish a workplace safety committee by November 1, 2021. The committee must be comprised of both employee and employer representatives. The NY DOL has stated that it will issue regulations regarding workplace safety committee requirements soon, but in the meantime, covered employers should begin planning for the establishment of the committee.
- Review the NY DOL’s FAQs. The NY DOL has published FAQs regarding employers’ obligations under the HERO Act, which employers are encouraged to review.
White House Task Force Issues Guidance for Federal Contractors Regarding Mandatory Vaccinations and COVID-19 Safety Protocols
The White House’s Safer Federal Workforce Task Force (the Task Force) issued detailed guidance and FAQs (the Guidance) identifying the required actions federal contractors and subcontractors (contractors) working under covered federal contracts must take to comply with President Biden’s Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (the Order), which specifies that all new covered federal contracts must include a clause published by the Federal Acquisition Regulatory Council (available here) mandating compliance with the Guidance (the Clause).
The Guidance contains three core requirements:
- Contractors’ employees must be fully vaccinated by December 8, 2021 (subject to limited exceptions);
- Masking and physical distancing requirements must be implemented at contractors’ workplaces; and
- Contractors must designate a coordinator responsible to implement COVID-19 workplace safety protocols.
Covered federal contracts include: (1) a procurement contract; (2) a contract for services; (3) a contract under the Service Contract Act; (4) a contract for concessions; or (4) any contract in connection with federal property or lands and related to offering services for federal employees or the public. While contracts for less than $250,000 or subcontracts solely for the provision of products are technically excluded from coverage, the agencies administering those contracts can elect to include and enforce the Clause and are being strongly encouraged to do so.
The Guidance applies to, and the Clause must be included in: (1) new contracts awarded on or after November 14, 2021, from solicitations issued before October 15, 2021; (2) new solicitations issued on or after October 15, 2021, and contracts awarded pursuant to those solicitations; (3) extensions or renewals of existing contracts and orders awarded on or after October 15, 2021; and (4) options on existing contracts and orders exercised on or after October 15, 2021.
Contractors must ensure compliance with the Guidance not only from their own employees but from all other employees at the contractor’s workplace/site (unless the contractor can “affirmatively determine” that there will be no interaction between its own employees and other employees at the worksite).
The Guidance mandates vaccinations (without a testing alternative) for all covered employees (including employees who are working remotely on a contract) by December 8, 2021, provided that exemptions for disabilities and sincerely held religious beliefs can be granted in accordance with applicable law. Contractors must ensure employees are fully vaccinated by checking official vaccination records. An attestation alone is not acceptable.
Masking & Social Distancing
Contractors must ensure that all individuals, including employees and visitors, comply with applicable guidance published by The Centers for Disease Control and Prevention (CDC) for masking and social distancing at workplaces.
CDC guidance notes that in areas of high or substantial community transmission, all persons—including those fully vaccinated—must wear masks indoors (except when alone in an office with floor-to-ceiling walls and a closed door or for limited periods of eating and drinking). Fully vaccinated persons in low or moderate community transmission areas do not need to wear masks indoors. Fully vaccinated persons are also exempt from the requirement to socially distance, regardless of the level of community transmission.
Individuals in any work setting who are not fully vaccinated should maintain six feet of distance from others at all times while at the workplace. This requirement would apply to, for example, any of the contractor’s employees who are not fully vaccinated because they have been granted an exemption to the vaccine mandate as an accommodation for an approved disability-related or religious reason.
Designation of COVID-19 Workplace Safety Coordinator
By November 1, 2021 (or sooner if entering into a contract with the applicable Clause), contractors must designate an individual (or group of individuals) to coordinate implementation and compliance with the Guidance, including compliance with vaccination documentation requirements.
The individual(s) must also ensure that information related to the Guidance is communicated to all covered employees in a readily understandable manner and that appropriate signage is displayed informing visitors at a contractor’s workplace about applicable COVID-19 safety protocols.
Interplay with the Upcoming OSHA Emergency Temporary Standard and State Law
Employers with 100 or more employees will soon be subject to an emergency temporary standard that will include a testing option for those who elect not to obtain a vaccine. The Guidance makes clear, however, that contractors must nonetheless comply with the Guidance’s vaccine mandate (without a testing alternative) regardless of whether they are subject to other workplace safety standards.
In addition, the Guidance supersedes any existing or future state laws that prohibit mandatory vaccination stating that the Task Force’s “requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance.”
Next Steps for Contractors
Contractors should review any current federal contracts that may soon be reviewed or extended, as well as any pending federal contracts expected to be executed after the Guidance becomes effective.
It is particularly important for subcontractors to closely examine their contractual relationships with prime contractors (or subcontractors at a higher level) to understand whether they are covered by the Guidance.
Contractors should begin implementing the masking and social distancing requirements called for by the Guidance. Contractors that have not yet mandated vaccines must now begin doing so, and for those contractors that already have a mandate in place, they may have to collect additional proof of vaccination if their existing policy required only an attestation.
Finally, contractors should appoint a COVID-19 workplace coordinator (or group of coordinators) who will implement and monitor compliance with the Guidance and execute on a communication plan for the workplace.