President Joe Biden recently announced a new safety mandate for workforce on federal projects. The new mandate affects both government workers and subcontractors working on government sites. The president has issued a vaccination mandate for all federal workers and contractors.
Background
On January 20, 2021, President Biden signed the Executive Order requiring that federal workers must wear masks. To achieve this, he established the Safer Federal Workforce Task Force (Task Force). The duties of the Task Force are:
- Providing ongoing guidance of the Federal Government operations to the heads of agencies.
- Safeguarding its employees
- To continue the Government construction projects during the COVID-19 pandemic.
On July 29, 2021, the Task Force released the rules for workforce safety against COVID-19, known as Agency Model Safety Principles. The principles require federal employees to attest to their vaccination status or must wear masks and keep social distancing.
On September 9, 2021, The President signed two executive orders enacting new workplace safety regulations for federal employees, contractors, and subcontractors. According to this new mandate, Workers must meet the following requirements:
- Confirm that they have been vaccinated against COVID-19, or
- agree to wear masks at all times and to get screened for Corona virus regularly.
In what manner does this affect roofers, building contractors, and other workers with federal contracts?
Executive Order on COVID-19 Vaccination requirement for Federal workers
Due to the spread of the Delta variant of COVID-19, President Biden signed the Executive Order on COVID-19 Vaccination for Federal Employees. The Federal Employee Executive Order, signed on September 9, 2021, mandates the vaccination of all federal employees. The Task Force is required to provide guidance on agency implementation within seven days of the Order. The only exceptions to the COVID-19 vaccination requirement will be those that are "required by law."
It differs from previous Task Force guidance, released in July. Previous legislation granted federal employees and contractors a reasonable choice of opting out of vaccination if they followed heightened requirements.
Executive Order to Ensure Adequate COVID Safety Protocols for Federal Contractors
Similarly, the Executive Order, signed on September 9, 2021, ensures that Federal Contractors comply with COVID safety protocols. With Federal Contractors Executive Order, the government aims to combat the spreading of COVID-19 and its impact on the procurement system. The objective is to ensure that workers who perform on or in connection with a Federal Government contract receive adequate COVID-19 protection. It requires “contractors and subcontractors working for federal contract or contract-like instrument to follow COVID-19 safety protocols at the workplace.”
The impact of Policy on construction projects
This new policy requires both federal contractors and employees working on-site to submit a form certifying their vaccination status. Unvaccinated employees are required to wear masks at federal workplaces. In addition, they must practice physical distance and undergo COVID-19 screening once or twice a week. The government will also place official travel restrictions on contractors who are unvaccinated.
Even visitors are required to follow safety instructions on federal facilities. It requires them to sign the vaccination confirmation. Or they must wear masks on-site and show proof that their COVID-19 test was negative within three days of the inspection.
Moreover, Biden also requested that all federal contractors be subject to the same requirements, even if they aren't working in federal buildings. Furthermore, he instructed the Department of Defense to review adding COVID-19 vaccinations to the military's immunization list.
To provide safety guidance during the pandemic, the White House established the Safe Federal Workplace Task Force. The group insists each federal agency should establish a test program for federal contractors and employees. It is basically for the workforce who are not vaccinated or refuse to share their vaccination status.
Implementation
For the federal contracts signed after October 15, 2021, the safety-covered clauses will be mandatory. The clause must state that: “Contractors and subcontractors must, for the duration of the contract, follow all of the Task Force's guidelines on federal workplaces. The clause applies on all work locations "where an individual works on or in connection with a Federal Government contract or contract-like instrument."
Currently, the meaning of these requirements is almost unclear. Task Force must provide definitions, explanations, and exceptions to protocol requirements by September 24th, 2021. The Director of the Office of Management and Budget must ensure that the guidance will promote economy and efficiency in Federal contracting.
The Federal Contractors Executive Order does not impose any immediate requirements on contractors or subcontractors, such as a vaccine mandate. However, the White House expects the contractors and subcontractors to comply with the same standards it has established for federal employees. A blog post by OMB states that “employers who wish to contract with the Federal Government must vaccinate their employees”. Contractors should therefore monitor the clarifications released by the Task Force and begin to estimate new costs accordingly.
Applicability of the Clause
The Federal Contractors Executive Order applies to the following contracts and contract-like instruments:
- Contracts for the procurement of services, construction, or leasing of real estate
- Contracts for services governed by the Service Contract Act
- Contracts for concessions, including those that are exempt from regulation by the Department of Labor (DOL)
- Contracts for federal properties and services including services related to federal employees, their dependents, or the public
There are a few notable exceptions to the Federal Contractors Executive Order:
- Grants
- Indian Tribes Contracts
- The contracts and subcontracts under the current Simplified Acquisition Threshold ($250,000 per FAR 2.101)
- Extensive work performed outside of the U.S.
- Subcontracts exclusively for the purchase of products
The Bottom-line
The true meaning of the Federal Contractors Executive Order requirement may remain ambiguous until the Task Force publishes further clarifications. However, understanding the scope of the president's COVID-19 Action Plan is necessary. President Biden recently signed instructions for contractors and workers performing on federal sites. The mandate requires both contractors and employees to show proof of vaccination. If they fail to provide that, they have to go through screening. Furthermore, the unvaccinated workforce must wear masks and keep social distancing at the worksite. The goal is to increase safety protocols for workforces of construction projects.
