Question: I read that President Biden issued an order mandating COVID-19 vaccinations for employees of federal contractors. How do I know if that order applies to my business, and what must I do to comply with it?

Answer: On September 9, 2021, President Biden issued Executive Order 14042 (the “Order”), which requires federal executive departments and agencies to include a clause in their applicable federal contracts that federal contractors, and the contractor’s subcontractors, must comply with COVID-19 guidance issued by the Safer Federal Workforce Task Force (the “Task Force”).  Notably, the Task Force requires that covered contractors must ensure that all its employees are fully vaccinated for COVID-19, unless an employee is legally entitled to an accommodation.

The Order applies to federal contracts regarding services, construction, concessions, or leases, but does not apply to grants, contracts with Indian Tribes, contracts less than $250,000, employees who perform work outside the United States, or subcontracts solely for the provision of products.

The Order applies not only to the direct federal contractor, but also to every subsequent subcontractor to the covered contract, until the point where the subcontractor solely provides products.  The Order relates to both large and small businesses.  The Task Force’s guidance also “strongly encourages” that covered contractors incorporate similar vaccination requirements into their contracts with other entities that may not be covered by the Order.

Under the Task Force guidance, covered contractors must verify that their covered employees are fully vaccinated.  However, a covered contractor may be required to provide a reasonable accommodation to employees who cannot be vaccinated due to a medical disability or a sincerely held religious belief, practice, or observance.  Covered contractors must verify an employee’s vaccination status based on a physical or digital copy of the employee’s immunization record from a health care provider or pharmacy; COVID-19 Vaccination Record Card; medical records documenting the vaccination; immunization records from a public health or State immunization information system; or a copy of any other official documentation verifying vaccination with information on the vaccine name, date(s) of administration, and the name of the health care professional or clinic site administering vaccine.  On November 4, 2021, President Biden extended the deadline for employees of federal contractors, and their subcontractors, to have received their final COVID-19 vaccination dose from December 8, 2021 to January 4, 2022.

Covered contractors must ensure that all covered employees and visitors comply with published guidance from the Centers for Disease Control (“CDC”) regarding masking and physical distancing at all covered contractor workplaces.  Contractors must also ensure that all individuals who are not fully vaccinated maintain a distance of at least six feet from others, consistently wear an appropriate mask in common areas, shared workspaces, and crowded outdoor settings, consistent with CDC guidance.

Covered contractors must designate one or more people to coordinate the implementation of, and compliance with, the Task Force’s guidelines.  This includes ensuring that employees provide the proper proof of vaccination documents.  The individual(s) must also coordinate the communication of required COVID-19 safety protocols to covered employees, and the masking and distancing requirements to visitors.

Direct federal contractors or their subcontractors may begin seeing the required compliance language in their new federal contracts.  If Executive Order 14042 applies to your business, now is the time to appoint one or more individuals to familiarize themselves with the Task Force’s guidelines and coordinate your business’s compliance with those guidelines.   The guidelines can be seen at the following link: Guidance for Federal Contractors and Subcontractors (saferfederalworkforce.gov).