Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On July 29, 2021, President Joseph R. Biden announced new requirements for federal employees and onsite federal contractors regarding vaccination status, masking, and social distancing. While a formal executive order has not yet been published, the White House issued a fact sheet which provides in relevant part (emphasis added):
Strengthening Safety Protocols for Federal Employees and Federal Contractors. Today, the President will announce that to help protect workers and their communities, every federal government employee and onsite contractor will be asked to attest to their vaccination status. Anyone who does not attest to being fully vaccinated will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a weekly or twice weekly screening testing requirement, and be subject to restrictions on official travel.
The federal government employs more than 4 million Americans, including over 2 million in the federal civilian workforce, throughout our country and across the world.
These rules should not only apply to federal workers and onsite contractors. President Biden is directing his team to take steps to apply similar standards to all federal contractors. The Administration will encourage employers across the private sector to follow this strong model.
It is not yet clear what the scope of an executive order will entail for federal contractors. While it appears that onsite contractors will be required to either be fully vaccinated for COVID-19 or continue to wear masks and engage in social distancing, it is not yet clear whether the order will attempt to require employers with federal contracts to engage in these protocols in their own workspaces (for example, at the headquarters of a company that has federal contractors in place on other federal worksites).
Separately, the administration issued updated model safety principles for federal agencies. These largely track the White House’s announcement with respect to federal employees and onsite contractors, but do not shed light on what, if any, requirements may be put in place for federal contractors who are not working onsite (emphasis added):
Fully vaccinated Federal employees and onsite contractors do not need to physically distance or participate in weekly screening testing, and are not subject to any Government-wide restrictions on official travel (although agency travel policies still apply). In areas of high or substantial transmission, they need to wear a mask in public indoor settings in Federal buildings. In areas of low or moderate transmission, they do not need to wear a mask.
Those Federal employees and onsite contractors who are not fully vaccinated or decline to provide their vaccination status must wear a mask, physically distance, and comply with a weekly or twice-weekly screening testing requirement, and are subject to Government-wide restrictions on official travel.
A plateauing vaccination rate, increasing infection and transmission numbers, and the severity of the COVID-19 Delta variant continue to drive federal policy in this area, and guidance is changing on an almost daily basis. Littler’s Workplace Policy Institute will keep readers apprised of developments in this rapidly evolving area of the law.