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Litigation & Employment

Executive Orders on Vaccinations

09/27/2021

On September 9, 2021, President Biden announced two executive orders which mandate COVID-19 vaccinations for certain employees. The First Executive Order, “Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees,” (herein, “Federal Employee Order”) mandates COVID-19 vaccinations for employees of the executive branch of the federal government.

The Second Executive Order, “Executive Order on ensuring Adequate Covid Safety Protocols for Federal Contractors,” (herein, “Contractor Order”) requires vaccinations for federal contractors and subcontractors. Additionally, President Biden directed the Occupational Safety and Health Administration (OSHA) to develop an Emergency Temporary Standard (ETS). The Emergency Temporary Standard will require all private companies with over 100 employees to mandate vaccinations. Alternatively, companies must perform weekly testing for unvaccinated employees.

FREQUENTLY ASKED QUESTIONS

  1. What do we know about the ETS?
    The forthcoming ETS will mandate paid leave to enable employees to get vaccinated. Until the ETS is issued, we are unaware of details such as timelines for compliance.

  2. Under the ETS, do employers need to pay for the testing of unvaccinated employees?
    Currently, it is unclear whether the employer or employee bears the cost of testing. The plan does provide for the expansion of free testing so it will be widely available.

  3. Under the ETS, do employees get paid time off to receive the vaccination?
    The ETS will contain a provision requiring employers with 100 or more employees to provide paid time off for workers to receive the vaccination and/or to recover from any side effects experienced after being vaccinated.

  4. What does the Contractor Order provide?
    The Contractor order requires vaccinations for all employees of federal contractors and subcontractors. The Contractor Order also provides for the inclusion of a clause in all federal contracts that the contactor or subcontractors must comply with yet-to-be-issued guidance from the Safer Federal Workforce Task Force.

  5. When will guidance be issued from the Safer Federal Workforce Task Force?
    The Safer Federal Workforce Task Force is scheduled to issue relevant contractual terms and exceptions of contractors by September 24, 2021.

  6. What contracts will the clause apply to?
    The new clause containing the guidance will apply to any new contract or any similar instrument entered, extended, renewed, or options exercised on or after October 15, 2021. It may also apply to existing contracts.

  7. Who is included under the Contractor Order?
    The Contractor Order applies to contractors and subcontractors with contracts or contract-like instruments with executive agencies, departments, or instrumentalities for:
  • procurements
  • services
  • construction
  • real property leasehold interests
  • concessions
  • businesses offering services for federal employees, their dependents, or the public in connection with federal property or lands

  1. Who is excluded from the Contractor Order?
    The Contractor Order will not apply to:
  • Grants
  • Contracts or agreements under the Indian Self-Determination and Education Assistance Act
  • Contracts for less than the ‘simplified acquisition threshold” as defined in Federal Acquisition regulation 2.101(generally defined as contracts for less than $250,000, with some exceptions)
  • Employees performing work outside of the United States, or
  • Subcontracts solely to provide products.

  1. Who is included under the Federal Employee Order?
    All federal executive branch workers. According to White House Press Secretary Jen Psaki, federal employees will have 75 days to get vaccinated.

  2. Are there any exceptions to the Federal Employee Order?
    There are minimal exceptions. Employees are unable to avoid vaccination through frequent testing. The only exceptions are those otherwise provided by law, such as not getting vaccinated due to a disability or sincerely held religious belief

  3. What happens if a federal employee refuses to get vaccinated?
    Federal employees may face discipline who refuse to get vaccinated.

  4. What are the penalties for not following the Executive Orders on Vaccinations?
    Failure to follow the Executive Order will result in significant fines for employers, potentially up to $14,000 per violation.

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