President Biden’s Broad COVID-19 “Hard” Vaccine-Mandate for Federal Contractors

By Conn Maciel Carey’s COVID-19 Task Force

While we have been mostly focused on the September 9th directive from President Biden to fed OSHA to issue a COVID-19 vaccination / testing emergency temporary standard, that was hardly the only major move the Administration announced on the vaccine-mandate front.  This update will focus on federal contractors – companies that provide services to the federal government through direct contracts with federal agencies and through subcontracts in support of federal contracts.

On the same day last month that Pres. Biden announced the OSHA “soft” vaccine mandate for private employers that serve only private customers, he also issued an executive order (EO) setting three new requirements for federal contractors at all tiers:

    1. Setting a “hard” vaccine mandate – “Covered Contractor Employees” must be fully vaccinated by January 18, 2021 (and thereafter before starting to work on any federal contract);
    2. Designating a COVID-19 safety coordinator to communicate requirements to employees and non-employees at your “Covered Contractor Workplaces”; and
    3. Ensuring all individuals at a “Covered Contractor Workplace” comply with CDC masking and distancing guidance.

For months now, since January 2021, contractors and subcontractors working in-person on federal property have already been required to provide a self-certification that they were fully vaccinated OR had received a recent negative COVID-19 test.  (See EO 13991 – “Protecting the Federal Workforce and Requiring Mask-Wearing”).  The new EO for federal contractors eliminates the “testing-out option” and expands the mandate beyond just federal properties to also cover private workplaces, or really any place at all, where an individual is working in support of a covered federal contract.

Only those unvaccinated employees who are “legally entitled to an accommodation” for medical or religious reasons may continue to be employed to work on federal contracts.  There are no exceptions for people who previously were infected and recovered.  Anti-body tests are not acceptable to prove vaccination status.  Under limited special circumstances involving an “urgent, mission critical need”, a federal agency may allow certain individuals who are not fully vaccinated to continue working for only up to 60 days from beginning the work on a covered contract or in a covered workplace.

Another development of this federal contractor mandate is that employers must review covered employees’ official documentation to verify vaccination status (i.e., the white card or an official record from a health department database), and self-attestation is not an acceptable substitute.

Who is covered by the various requirements of the EO? Continue reading