There are several different federal, state and local orders, proclamations and regulations being issued regarding Employer’s requirements related to mandatory vaccinations. This has caused a great deal of confusion as to what requirements apply, and what exceptions are available. Please beware that these requirements are changing on a regular basis.
On September 9, 2021, President Biden issued Executive Order 14042 (Ensuring Adequate Safety COVID Safety Protocols for Federal Contractors) (“EO 14042”). EO 14042 is a COVID-19 action plan related to federal contractors. On September 24, 2021, supplemental guidance was publicized. This Q&A provides a brief response to EO 14042 – Federal Procurement for Government Contractors.
On December 7, 2021, this Executive Order was stayed by Georgia v. Biden, No. 1:21-cv-163 (S.D. Ga. 2021).
Q: What is EO 14042?
A: This Executive Order relates to federal contract procurement. Through EO 14042, President Biden has ordered federal agencies to insert contract clauses in all federal contracts, agreements and solicitations issued on or after October 15, 2021.
Q: What is the current status of EO 14042?
A: On December 7, 2021, Judge Baker of the U.S. District Court for the Southern District of Georgia issued a stay of EO 14042.
Q: What does this mean?
A: This means that the federal government (at least temporarily) cannot enforce EO 14042. For now, this means that President Biden’s Executive Order is put on hold.
Q: Who is affected by EO 14042?
A: Any Contractor that executes a federal contract on or after October 15, 2021 will be affected. Federal contracts awarded prior to October 15, 2021 will have the requirement incorporated at the point in which an option is exercised or an extension to the contract is made.
Q: Does EO 14042 apply to small businesses?
A: Yes. It will apply to all federal contracts executed on or after October 15, 2021. There is not a 100-employee threshold for EO 14042. The 100+ employee threshold is related to the OSHA emergency rule. That is addressed in a separate Q&A.
Q: What does EO 14042 do?
A: This provides a requirement to insert a new federal clause in federal contracts that requires vaccination or testing.
Q: Is there a testing alternative?
A: It depends on the federal agency requirements. You will need to review your federal contract, and discuss the issue with your Contract Officer.
Q: What is the deadline for Contractor employees being fully vaccinated?
A: The date has been extended from December 8, 2021 to January 4, 2022.
Q: Can EO 14042 apply to federal contracts issued before October 15, 2021?
A: Potentially, but only if the Contract Officer amends the federal contract to include this clause, or if the contracting agency otherwise incorporates the vaccination into the workplace requirements.
Q: Is EO 14042 subject to change?
A: Yes. The EO 14042 contract clause will most likely be tied to recommendations made by the Safer Federal Workforce Task Force (https://www.saferfederalworkfo...). This Task Force will continue to revise and update recommendations, including any changes that occur with the OSHA emergency regulations.
Q: What is a federal worksite?
A: Any place, site, installation, building, room, or facility in which any Federal executive department or agency conducts business, or is within an executive department or agency’s jurisdiction, custody, or control.
Q: Does EO 14042 potentially apply to a contractor’s workplace locations?
Q: If a covered Contractor employee (i.e., employee working under a covered federal contract) is likely to be in the same area of a building, site, or facility at the contractor’s workplace, do the other areas of the Contractor’s building, site or facility constitute a covered workplace?
A: Yes, unless the Contractor can affirmatively determine that none of its employees on another floor or in another area of the building will come into contact with a covered Contractor employee. “This would include affirmatively determining that there will be no interactions between covered contractor employees and non-covered contractor employees in those locations during the period of performance on a covered contract, including interactions through use of common areas such as lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages.” Safer Workplace Task Force Guidance, Question 9, dated September 24, 2021.
Q: “Are the workplace safety protocols enumerated above the same irrespective of whether the work is performed at a covered contractor workplace or at a Federal workplace?”
A: “Yes. The Guidance applies to all covered contractor employees and all contractor or subcontractor workplace locations…” Safer Workplace Task Force Guidance, Question 10, dated September 24, 2021. This requirement includes employees that are working remotely from their own residence.
Q: Would this include State-projects that receive federal funding (such as Sound Transit)?
A: No. From the current regulations, these worksites would not be included within the scope of EO 14042.
Q: If the contracting agency applies these standards do I need to comply, even if it is not in my contract?
A: Because EO 14042 limits access, if the contracting agency applies the standard (even incorrectly), the Contractor’s employees will not be able to have access to the federal site, unless it complies. Contractors may though have contract claims against the contracting agency.
Q: What contractor employees are covered?
A: Any Contractor employees working on or in connection with a covered contract or working at a covered Contractor’s workplace. This includes employees who are not themselves working on or in connection with a covered contract, such as human resources, billing, and level review, who perform work in connection with a federal government contract.
Q: Do onsite contractor employees need to provide proof of vaccination?
A: Onsite Contractor employees on the applicable federal sites will be provided a Certification of a Vaccination Form (attached) when they enter a federal building or a federally-controlled worksite. In most cases, the contractor employee will be required to keep this Certification on their person while they are in the federal building or on the worksite. Contractor employees that are not vaccinated (or refused to share their vaccination status) must show proof of a negative COVID-19 test within the previous three (3) days.
Q: What are the new requirements for Vaccinated employees working at a federal site?
A: Full vaccinated contractor employees who work at an applicable federal site, will have to: (i) provide an attestation confirming vaccination status, and (ii) wear a mask indoors, if working in a locality with high or substantial transmission rates.
Q: What are the new requirements for Unvaccinated employees working at an applicable federal site?
A: Unvaccinated (or employees that refuse to disclose) employees must: (i) take weekly or biweekly COVID tests and provide evidence of negative tests; (ii) wear a mask indoors, if working in a locality with high or substantial transmission rates; and, (iii) be subject to government limitation on official work travel.
Q: Are there any exemptions to EO 14042?
A: Yes. Employees may claim a religious, or a medical accommodation are exempt. To be a valid religious accommodation, the employee must hold a sincerely hold religious belief, practice, or observance. Requests for a medical accommodation or exemption should be treated as a request for a disability accommodation.
Q: What is required for an employee to request a disability accommodation?
A: Generally, it requires a note from an appropriate health care professional outlining the medical basis for the accommodation.
Q: What is required for an employee to request a religious accommodation?
A: An employee must have a sincerely held religious belief to seek an accommodation under the law. Employers should be careful to question the validity of the belief once it has been asserted. The EEOC has provided guidance on religious accommodations, stating: “the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.” EEOC Guidance, Compliance Manual on Religious Discrimination, Dated January 15, 2021.
Q: What if the Employer knows that the employee is not honestly seeking a religious accommodation?
A: When an Employer knows that an employee seeks an accommodation based on false, misleading, or dishonest grounds or information, the Employer should deny the request. It is important that the Employer’s knowledge is based upon objective fact, not opinion or subjective belief.
Q: Do Employers have to pay to have their employees vaccinated or tested?
Q: Do I need to bargain over this issue with the Union, even though it is a federal requirement?
A: Probably. It will depend in part on your collective bargaining agreement.
For additional information concerning this topic or any other labor and employment issue, please contact any of our attorneys directly at (206) 447-0182 or email@example.com.