Guide to Federal Contractor Obligations under Recent COVID-19 Executive Orders

Update: The vaccination deadline for covered federal contractors has been extended until January 18, 2022.

The federal government’s complicated multi-pronged approach to implementing COVID-19 safeguards related to federal contractors has left many confused.  We offer this brief guide to help contractors understand their obligations and the timelines for implementation.

Executive Order 14042 (September 9, 2021) creates the broadest set of obligations applicable to federal contractors.  When EO 14042 applies, its requirements apply not only to employees working on or in connection with the covered federal contract, but also to all other employees that share workplaces with such employees or come into contact with them as part of their employment. 

There is a great deal of confusion as to when EO 14042 goes into effect.  In general, the requirements of EO 14042 do not apply to an employer until it actually enters into a government contract or subcontract that includes a clause requiring compliance.  It is possible that some employers may be presented with such contract clauses as early as mid-October.  Other employers with existing federal contracts may not be presented with a covered contract for many months or perhaps even ever.  Contractors that are presented with such a clause prior to December 8, 2021 will have until December 8 to come into compliance. Contractors that are presented with such a clause after December 8, 2021, either in an initial contract or at the point when an option is exercised or an extension made, are expected to comply immediately; there is no grace period.  The absence of a grace period, of course, creates substantial complications given the fact that covered employees must be fully vaccinated for COVID-19 and the recently issued federal contractor guidance provides that employees are not considered to be fully vaccinated until two weeks after they have received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine.  Accordingly, contractors must plan ahead in order to meet compliance deadlines.

Many contractors have been focused on EO 14042’s requirements relating to vaccination.  Contractors must keep in mind, however, that EO 14042 also includes masking and social distancing requirements that apply even to those who have been vaccinated.

Many contractors have also been focused on whether they have a contract that requires a clause mandating compliance with EO 14042. While this is an important inquiry, based on the Guidance “strongly” encouraging agencies to include a clause requiring compliance even in contracts that are not covered or directly addressed by EO 14042, we expect agencies to try to expand the scope of EO 14042 to include, for example, subcontracts for the manufacturing of products.  More information on other sources of COVID-19 safety requirements are discussed below.

Executive Order 14043 (September 9, 2021) is directed to executive branch agencies and applies only to executive agencies and their government employees.  EO 14043 has no relevance to federal contractors, except that some government contracting officials or administrators seem to be confused about the differences between EO 14042 and EO 14043, and may be seeking to impose restrictions on their contractors for which there is no legal basis.  A contractor that is not yet subject to EO 14042 and that is being asked by the government to comply with COVID-19 safety requirements is entitled to ask that the government to provide the basis for its requests.

Executive Order 13991 (January 20, 2021) directed the heads of executive departments and agencies to take action immediately, as appropriate and consistent with applicable law, to require the following individuals to comply with CDC guidelines with respect to wearing masks, maintaining physical distancing, and adhering to other public health measures: on-duty or on-site federal employees; on-site federal contractors; and all persons in federal buildings or on federal lands.  EO 13991 also created the Safer Federal Workforce Task Force (Task Force). 

Pursuant to EO 13991, on January 24, 2021 the Office of Management and Budget issued a memorandum to the heads of the executive departments and agencies providing model safety principles and requiring each agency to adopt its own tailored COVID-19 safety plan.  With the input of the Task Force, these plans continue to evolve.  The model plan was most recently updated on September 13, 2021 and provides, among other things, that:

Onsite contractor employees who are not yet contractually required to be vaccinated and who are not fully vaccinated or who decline to provide information about their vaccination status must provide proof of a negative COVID-19 test from no later than the previous 3 days prior to entry to a Federal building— as noted below, if a contractor employee is regularly tested pursuant to an agency testing program, they do not need to provide proof of a negative COVID-19 test from no later than the previous 3 days prior to entry to a Federal building unless required to by the agency testing program.

In accordance with these agency plans or pursuant to directives implementing the plans, employees of federal contractors that are actually working in a federal facility or on federal property may be subject to safety requirements specific to particular federal agencies or even to just that facility or property.  Accordingly, contractors not subject to EO 14042 may still be directed now by the government to engage in certain practices or may even have the government deny access to non-vaccinated employees.  As noted above, when presented with such directives, contractors are entitled to ask that the government provide the basis for its requests.  We are seeing instances in which agencies are requesting action by contractors for which there is no clear legal authority.

Litigation involving these requirements has already been filed. There will almost certainly be additional challenges, and it is possible that some or all of these requirements could be enjoined.  Until that happens, however, contractors that are not looking to lead a legal challenge themselves will probably want to comply with the requirements when they are being imposed pursuant to agency safety plans or by contract.

An OSHA Emergency Temporary Standard (ETS) is also expected to be released sometime within the next few weeks and will apply to all employers with 100 or more employees.  Many healthcare employers are already subject to a separate OSHA ETS that was released in June.

For federal contractors, the requirements of the new OSHA ETS will almost certainly apply more broadly in terms of the workers that will be subject to the standard, but may end up being more or less demanding than the EO 14042 requirements. 

Some federal contractors are paying little attention to the anticipated OSHA ETS based on an assumption that their compliance with EO 14042 will likely satisfy OSHA requirements.  Contractors should be paying attention to both sets of requirements, however, as well as any applicable state guidance, as there will likely be some differences in scope.  Also, should a legal challenge result in the EO 14042 requirements being enjoined, then federal contractors may end up being subject to the OSHA ETS only (or vice versa).

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.