Legal Corner

Construction & Public Contracts Group, Hinckley Allen, LLP Lisa A. Zaccardelli Partner Thomas J. Pagliarini Associate Julianna Malogolowkin Associate

Federal Vaccine Mandates Under Biden’s COVID-19 Action Plan

On September 9, 2021, President Biden announced a broad COVID-19 Action Plan entitled “Path out of the Pandemic.” The Action Plan included two Executive Orders requiring most federal government employees and federal contractors to implement vaccine mandates and indicated that additional vaccine mandates will be required for large private employers and healthcare entities receiving certain federal funds. The focus of this article is on the requirements for federal contractors and large employers.

Federal Contractors

“Covered” contractors are required to have their employees fully vaccinated by December 8, 2021.

Contractors are considered “covered” contractors if they are a prime contractor or any tier subcontractor on the following types of federal contracts: • procurement contracts for services, construction, or leasehold interests in real property; • contracts covered by the Service Contract Act; • concession contracts; and • contracts entered into with the federal government in connection with federal property or land and which relate to offering services to federal employees, their dependents, or the general public.

“Fully vaccinated” means at least two weeks have passed since the individual has received the required amount of doses of the particular vaccine (e.g., 1 dose for J&J; 2 doses for Pfizer/Moderna). Given the December 8, 2021 deadline, this means covered contractor employees must receive their last dose no later than November 24, 2021.

Clerical and office staff personnel (e.g., human resources, billing) may be viewed as performing work “in connection with” a covered contract. Additionally, even employees who work remotely are required to be fully vaccinated if they perform work on or in connection with a covered contract. Required Clause

Per Executive Order 14042, agencies are required to include a clause in covered contracts that the contractor and subcontractors of any tier will comply with guidance from the Safer Federal Workforce Task Force (the “Task Force”), which addresses mandatory COVID-19 vaccination and other COVID-19 compliance issues. Agencies must implement the requirement: • For new contracts awarded on or after November 14: • For new solicitations issued on or after October 15; • For existing contracts, upon any extension or renewal and orders awarded, or options and orders exercised on or after October 15.

The required clause was published by the Federal Acquisition Regulatory Council on September 30, 2021, and is available at the following: https://www.whitehouse.gov/wp-content/uploads/2021/09/FAR-CouncilGuidance-on-Agency-Issuance-of-Deviations-to-Implement-EO-14042.pdf

The Task Force guidance encourages agencies to incorporate similar requirements into non-covered contracts and agreements with non-covered contractors, continued on page 23

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Getting Covered Employees Vaccinated

Federal contractors are not required to set up vaccination clinics for their covered employees. They can choose to do so, but it is not required. On the other hand, covered contractors are encouraged to inform their employees of the various opportunities for them to get vaccinated. Proof of Vaccination

Covered contractors are required to ensure their covered employees show proof that they are fully vaccinated. Proof of vaccination can be demonstrated through a copy of the official Centers for Disease Control and Prevention (CDC) COVID-19 vaccine card, a copy of immunization records from a health care provider or pharmacy, other medical records sufficiently demonstrating that the individual is fully vaccinated, or a copy of immunization records from a public health or State immunization information system.

Covered contractors may have to provide reasonable accommodations to employees for medical/ disability reasons under the Americans with Disabilities Act (ADA) or religious reasons under Title VII. Under these laws, an analysis would be undertaken to determine if an individual who cannot get vaccinated had a medical condition/disability or sincerely held religious belief that qualifies for an exemption, would pose a direct threat in the workplace, and if so, then to determine if there is a way to provide a reasonable accommodation that, without undue hardship, would eliminate or reduce the risk of the employee posing a direct threat.

Continued Masking and Social Distance

Individuals who are not fully vaccinated must continue to wear a mask indoors and in certain outdoor settings (e.g., crowded gatherings, sustained close contact). Covered contractors are required to comply with any applicable CDC guidance regarding continued masking and social distancing. For example: continued masking requirements in indoor settings where there is high community spread of COVID-19.

continued on page 25

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Designation of COVID-19 Coordinator

To the extent covered contractors have not already done so, they will be required to designate a person or persons to ensure compliance with the executive order’s requirements, including disseminating information relating to the order and tracking proof of vaccination.

Additional Requirements

The Task Force published its initial guidance on September 24, 2021 and may adopt additional requirements. Contractors will also be required to comply with guidance issued through FAQs on the Task Force website.

Large Employers (100 or More Employees)

The most expansive component of the Action Plan is that President Biden directed the Occupational Safety and Health Administration (OSHA) to develop an Emergency Temporary Standard (ETS) that will require all employers with 100 or more employees to require their workers to either (1) get vaccinated; or (2) test weekly for COVID-19.

It is expected that all U.S. based employees will count towards the 100 employee threshold.

Employers will likely have to evaluate the ability to accommodate individuals who cannot get vaccinated under the ADA (for medical/disability) or Title VII (for religious accommodations). Individuals who cannot get vaccinated are expected to be tested for COVID-19 at least weekly, and may need to comply with other social distancing requirements.

The ETS will likely provide additional details on an employers’ obligation to provide paid time off to allow employees to get vaccinated, or for the time and cost of any testing.

There has been discussion of possible penalties for failure to comply with the ETS (i.e., whether such a violation could be deemed a “serious” violation subject to a penalty of $13,653 per violation).

In the coming weeks, we expect to hear more details on how these new sweeping mandates will be implemented and enforced. Additionally, more information is expected on what the potential ramifications will be for employers and individuals

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