Q: Our agency conducts business trips for federal government contractors. On September 9, President Biden issued an executive order adding Covid-19 vaccination requirements for all government contractors and subcontractors. Does the decree apply to the employees of my agency? Do we have to have 100 employees to be covered? What about part-time employees and independent contractors (CIs)? When should everyone be vaccinated? What is the penalty for non-compliance? How does the government police compliance?
A: The decree applies to all subcontractors who provide services to most major government contractors. A different part of the same order applies to each employer with 100 or more employees, but the part dealing with government contractors and subcontractors does not have a minimum number of employees.
Strictly speaking, the decree does not mandate vaccinations, but the president has made it clear that he expects the follow-up âguidelinesâ to do so. These guidelines will be published by a new government entity called the Safer Federal Workforce Task Force by the end of September.
Not all travel agencies that handle trips for government contractors are subcontractors. If you manage the travel of contractor’s employees without a formal contract or with a contract that does not incorporate certain clauses of the prime contractor’s contract, you would likely not be considered a subcontractor.
You will likely need to have a written contract that subjects you to some formal clauses of the main contract, such as those covering minimum wage and anti-discrimination requirements. The contract would likely be called a subcontracting agreement.
I use the word “probably” three times because there is no definition of subcontractor in the order and no generally applicable definition under federal law. However, the calendar rules certainly imply that you must have such a formal contract.
By virtue of the decree, after October 15, the vaccination obligation will apply to you from the date on which the project manager concludes a new subcontracting contract with you, formally extends a subcontracting contract. contracting or exercising its option to renew a subcontract. The new or renewed subcontract must contain the clause requiring compliance with the guidelines issued by the working group.
Until the working group releases its guidelines, there are a lot of open questions, such as deadlines for vaccinations; whether the requirements apply to part-time employees, ICs or home staff; and whether the mandate will apply to all employees or only to those working on the prime contractor’s travel.
The decree is silent on the subjects of execution and sanctions. However, the breach could theoretically result in the termination of the subcontract, suspension or exclusion of any other subcontract.
If your agency is located in one of about eight states that prohibit employers from requiring vaccinations as a condition of employment, it’s very difficult to know how you will be able to comply with both laws. The task force may come up with some exceptions to the mandate, but the issues may need to be resolved in court.
Once the task force has clarified the many questions, I will write a follow-up column for the Legal Bits.