Update On The Executive Order Of Mandatory Vaccination Implementation
In a recently issued memorandum, the Federal Acquisition Regulation (“FAR”) Council released the much-anticipated clause that, when included in solicitations and new contracts and contract-like instruments, will require certain Federal contractors and subcontractors to impose vaccine mandates, masking, and social distancing. The clause, and the accompanying memorandum, can be found here. Importantly, The White House also published additional FAQs that clarify the breadth of Executive Order 14042, and which can be found here.
Specifically, the clause requires contractors and subcontractors to comply with President Biden’s September 9 Executive Order, the September 24 Guidance, and the additional FAQs. The FAR memorandum and the FAQs also note that agencies are strongly encouraged to incorporate the clause:
- in contracts that have been or will be awarded prior to November 14 on solicitations issued before October 15; and
- contracts that are not covered or directly addressed by the order because the contract or subcontract is under the simplified acquisition threshold or is a contract or subcontract for the manufacturing of products; and
- federal agencies are also encouraged to try to insert the language mandating compliance with the Executive Order and all subsequently issued guidance or FAQs in existing contracts and contract-like instruments prior to the date upon which the order requires inclusion of the clause.
This recommendation clearly broadens the number of contracts or contract-like instruments that may be affected, including those awarded prior to the deadlines outlined in the Guidance, and contracts or subcontracts valued at under $250,000 or for the manufacturing of products, including existing contracts.
Taking into consideration the FAR clause and memorandum and the FAQs, employers should be aware of the size of all of their contracts with the federal government, the amount of each contract, and what each contract covers. It is essential that employers review new contracts and proposed modifications to existing contracts for the FAR clause to determine whether they are a party to or might become a party to a covered contract. Employers should especially examine any requests for modifications, extensions, or bids. If the language below is included (referencing Executive Order 14042), the vaccine mandate and masking and social distancing requirements will be compelled under the contract:
52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors.
ENSURING ADEQUATE COVID-19 SAFETY PROTOCOLS FOR FEDERAL
CONTRACTORS (OCT 2021) (DEVIATION)
(a) Definition. As used in this clause –
United States or its outlying areas means—
(1) The fifty States;
(2) The District of Columbia;
(3) The commonwealths of Puerto Rico and the Northern Mariana Islands;
(4) The territories of American Samoa, Guam, and the United States Virgin Islands;
And
(5) The minor outlying islands of Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Atoll.
(b) Authority. This clause implements Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, dated September 9, 2021 (published in the Federal Register on September 14, 2021, 86 FR 50985).
(c) Compliance. The Contractor shall comply with all guidance, including guidance conveyed through Frequently Asked Questions, as amended during the performance of this contract, for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (Task Force Guidance) at https://www.saferfederalworkforce.gov/contractors/
(d) Subcontracts. The Contractor shall include the substance of this clause, including this paragraph (d), in subcontracts at any tier that exceed the simplified acquisition threshold, as defined in Federal Acquisition Regulation 2.101 on the date of subcontract award, and are for services, including construction, performed in whole or in part within the United States or its outlying areas.
Related Attorneys
