This week’s post was co-authored by Robinson+Cole Labor and Employment Group lawyer Emily A. Zaklukiewicz.
Last month, President Biden issued an Executive Order which effectively imposes several COVID-19 safety standards and protocols, including mandatory vaccination, upon certain federal contractors and subcontractors. Specifically, the Executive Order directs federal agencies to incorporate a clause into all covered federal contracts which will require federal contractors or subcontractors to comply with guidance published by the White House’s Safer Federal Workforce Task Force (Guidance), and which was released on September 24, 2021. Under the Executive Order and Guidance, certain manufacturers and other companies doing business with the federal government will soon be required to mandate vaccination for their workforces and ensure compliance with masking and social distancing requirements, among other requirements.
Pursuant to the Executive Order and the Guidance, by December 8, 2021, covered federal contractors and subcontractors must ensure, and verify through proper documentation, that their workforces are fully vaccinated against COVID-19, except for employees who are legally entitled to a medical or religious accommodation. Covered federal contractors and subcontractors must also ensure that all employees and visitors comply with the Centers for Disease Control and Prevention’s guidance on physical distancing and masking while in the workplace. Covered contractors will also be required to designate a COVID-safety coordinator responsible for coordinating, implementing, and ensuring compliance with the safety protocols.
The new COVID-19 safety protocols will be implemented and effectuated by the addition of a clause to covered federal contracts awarded on or after November 14, 2021, as well as covered federal contract solicitations, extensions, renewals, and options taking place on or after October 15, 2021. By virtue of the addition of this required clause, covered federal contractors and subcontractors will be contractually obligated to comply with the relevant COVID-19 safety requirements specified in the Guidance. Prime contractors will be responsible for ensuring that this clause flows down to first-tier subcontractors, and higher-tier subcontractors must continue to flow the clause down to the next lower-tier subcontractor. According to the Executive Order, subcontracts that are solely for the manufacturing or provision of products are not subject to the order’s vaccination and other COVID-19 safety requirements although when discussed in the Guidance, the scope of this exception is less clear. However, each contract should be independently reviewed on a case-by-case basis before making this determination.
Further, the Guidance “strongly encourages” federal agencies to incorporate the COVID-19 safety clause in non-covered contracts, including existing contracts and contracts or subcontracts that are solely for the manufacturing/provision of products. Therefore, because federal agencies may still opt to make modifications to contracts that are not otherwise “covered contracts,” manufacturers should continue to check any existing contracts (and any contracts entered into in the future) to determine if the contract has been modified to include the relevant vaccination and other COVID-19 safety requirements.
As manufacturers with contracts or subcontracts with the federal government gear up for the implementation of these new COVID-19 safety protocols and vaccination requirements, they should review any future contracts or subcontracts, contract solicitations, or contract renewals or extensions to determine if the Executive Order and Guidance will apply, and should monitor their federal contracts and subcontracts for any relevant contract modifications. Moreover, manufacturers with covered contracts should be prepared to implement the requisite masking, physical distancing, and other COVID-19 safety requirements, and to comply with the December 8, 2021, deadline for full vaccination of their workforces.