Update: President Biden’s COVID-19 Action Plan and Executive Orders

The Administration released general details of its President Biden’s COVID-19 Action Plan and two Executive Orders that will require all federal employees and federal contractors to be vaccinated against COVID-19.  President Biden’s COVID-19 Action Plan aims to require all employers with 100 or more employees to ensure their workforces are vaccinated or required to submit to weekly testing.  The new requirements in the Executive Orders do not apply to federal-aid contracts.  However, if a federal-aid contractor employs 100 or more employees then the contractor must ensure their workforces are vaccinated or required to submit to weekly testing.  

Click HERE to view the Executive Order impacting direct federal contractors and subcontractors.  This Order requires the Safer Federal Workforce Task Force provide further guidance and a draft contract clause by September 24th.  The Federal Acquisition Regulation will be amended to include these requirements in a contract clause in federal solicitations and contracts.  Direct federal contracts can expect this new contract clause to appear in all covered federal contracts, extensions, and renewals by October 15th.

AGC of America has gathered resources to assist its members facing COVID-19 vaccine requirements; vaccine safety and the effectiveness that members can use in their educational efforts; and provided resources to assist with employer vaccine policies.  Click HERE to find the AGC COVID-19 Vaccine Toolkit.

Some relevant language from the President Biden’s COVID-19 Action Plan is below:

Requiring All Employers with 100+ Employees to Ensure their Workers are Vaccinated or Tested Weekly 

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.

Requiring Vaccinations for all Federal Workers and for Millions of Contractors that Do Business with the Federal Government

Building on the President’s announcement in July to strengthen safety requirements for unvaccinated federal workers, the President has signed an Executive Order to take those actions a step further and require all federal executive branch workers to be vaccinated. The President also signed an Executive Order directing that this standard be extended to employees of contractors that do business with the federal government. As part of this effort, the Department of Defense, the Department of Veterans Affairs, the Indian Health Service, and the National Institute of Health will complete implementation of their previously announced vaccination requirements that cover 2.5 million people.

The E.O. requires direct federal contractor and subcontractors to be vaccinated, without the option of submitting a weekly test.  This mandatory vaccine requirement does not apply to federal-aid contracts.  Another way to put it is if a project is covered by the federal contractor minimum wage and paid leave requirements, this mandate will also apply.  

The Action Plan requires OSHA to issue an Emergency Temporary Standard (ETS) to all employers of 100 or more employees to be vaccinated OR submit to weekly testing.  All employers (including federal-aid contractors) with 100 or more employees will be subject to requirements to OSHA’s ETS, which has yet to be issued.  There are a lot of questions that have yet to be answered, especially with the ETS.  We will be reaching out to OSHA, and others, and will send you updates as soon as we learn more.