On Thursday evening, President Joe Biden addressed the nation and announced his plan for a “Path Out of the Pandemic.” A broad outline of President Biden’s plan can be found on the White House web site here: Biden COVID Plan. That outline includes a vaccine mandate for all government contractors and private employers with 100 or more employees. After the President’s address, the White House released two Executive Orders. Here’s what we know:
1. FEDERAL CONTRACTOR VACCINE MANDATE
After President Biden’s press conference, the White House posted a copy of an “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors.” Here’s a link to that order: Exec. Order Vaccine Protocols/Contractors. Highlights of the order include:
- Significantly, the Executive Order does not explicitly implement a vaccine mandate. Instead, the Order defers to guidance from the Safer Federal Workforce Task Force. Nevertheless, given the tone of President Biden’s comments, it is safe to assume that the Task Force will mandate vaccines for federal government contractors.
- Federal agencies must include clauses in their contracts requiring contractors to comply with guidance issued by the Task Force. The requirements in those clauses must also be flowed-down to subcontractors.
- Here’s a link to the Task Force’s current discussion of vaccines: Task Force Vaccine Discussion. You should regularly check that link because it will almost certainly change in the coming days and weeks.
- The Task Force shall issue guidance by September 24, 2021 which will essentially provide details for the requirements of the Executive Order.
- The Federal Acquisition Regulation (“FAR”) will be amended to implement the Executive Order.
- The new clause will be included in all new contracts, extensions, renewals or options of contracts on or after October 15, 2021.
2. FEDERAL EMPLOYEE VACCINE MANDATE
President Biden’s second Executive Order explicitly mandates COVID-19 vaccines for federal employees. That order can be found here: Federal Employee Vaccine Mandate. Here are the highlights:
- The order repeatedly finds that the “best way” to combat COVID-19 is to “be vaccinated.”
- Based on that finding, the order finds “it is necessary to require COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.” I anticipate that those exceptions will be narrow and focus on people with disabilities and sincerely-held religious beliefs.
- Once again, the Safer Federal Workforce Task Force will lead the way. “The Task Force shall issue guidance within 7 days of the date of this order on agency implementation of this requirement for all agencies covered by this order.” So, we should have additional guidance by September 16, 2021.
3. PRIVATE EMPLOYER MANDATE???? Employers with 100+ Employees
The Executive Orders do not address a vaccine mandate for private employers. Nevertheless, the White House’s broad outline says that OSHA will be issuing an emergency standard mandating vaccines and/or testing for private employers with 100 or more employees:
The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.
The process for issuing an Emergency Temporary Standard (“ETS”) is governed by 29 U.S.C. § 655(c). Under that statute an ETS will become effective immediately when it’s published in the Federal Register. Prior to publication, however, the ETS will likely identify compliance dates and deadlines for when certain actions must occur. The ETS will also allow for a public comment period prior to publication.
4. CONCLUSION
In large part, today’s news is: “Hurry up and wait!” We know that the federal government is going to implement a vaccine mandate. But, we don’t know the exact contours of that mandate. We should have more guidance from the Task Force in the near future.
I plan to provide regular updates on this issue. I also maintain an e-mail distribution list for clients, friends and generally anybody interested in employment law issues. If you would like for me to include you on that list, please send me an e-mail at: rlockwood@wilmerlee.com