When President Biden issued Executive Order 14042: “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors” in September of 2021, a wave of uncertainty came with the announcement. After two years of variants, the COVID-19 discussion has become a mainstay in our culture — destroying friendships and relationships one differing opinion at a time. Due to the hotly-contested nature of COVID-19, it’s no surprise that this mandate designed to provide safeguards for federal contractors and the agencies they contract with has been met with varying degrees of opposition.
As of December 7, 2021, this mandate has been blocked by the U.S. District Court for the Southern District of Georgia. While this executive order is now unenforceable, Minnesota General Contractors should understand what impact the mandate may have if upheld in whole or part.
What Executive Order 14042 Means for Federal Contractors
The primary requirement of this order involves the inclusion of specific language in all contracts and similar agreements with federal agencies:
“..the contractor or subcontractor shall, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force ….”
This language is intended to extend the COVID-19 vaccination mandate for federal departments to those who contract with them. With it came guidance for those contracting with government agencies, including:
All contractor employees must be fully vaccinated by January 18, 2022. Limited exceptions are made for those requiring accommodation due to health and/or religious reasons. Any requested exemptions are the contractor’s responsibility to determine eligibility.
This guidance applies to federal contracted GCs, subs, and their employees. This includes office members and even those not necessarily working on that contract (remote workers, off-site workers, etc.).
Contractors that later join a covered federal project will be required to get all of their employees in compliance by the first day of their participation in the contract.
While the mandate guidance excludes fully-vaccinated contractors and employees from social distancing, it is still the GC’s responsibility to enforce compliance for those who are not. This includes mask-wearing and physical distancing.
It is the contractor’s responsibility to monitor their unvaccinated workers and ensure they are properly social distancing and wearing their masks properly at all times when required.
To ensure COVID-19 workplace safety is coordinated, GCs should designate one or more team members for this effort.
Contractors and subcontractors participating in activities related to a federal contract are required to comply with this guidance according to the Federal Acquisition Regulatory (FAR) Council’s inclusion clause.
For Contractors Already Working Under These Guidelines
If you accepted a federal contract before the Georgia court’s action to block the mandate, consider the following:
Find out if the agency you contracted with treats these requirements as active or are temporarily on hold unless the injunction gets lifted.
Regarding future contracts, pay special attention to any inclusions, communications, or modifications involving the FAR’s requirement to abide by the guidance despite being unenforceable.
New access requirements for government agency sites pop up every day, so be mindful of their vaccination protocols unrelated to Executive Order 14042.
If you are a contractor that is already in compliance with this order, or partially so, the below tips may be helpful:
Determine if you want to continue requiring compliance by your employees with EO 14042 or if you plan to stop enforcement until a later court decision is made.
Should you move forward with compliance measures, allow employees additional time to comply or complete the process for an exemption request.
Minnesota contractors who decide to continue with vaccination program efforts should be cautious. Several states have enacted or intend to pass legislation that will conflict with the 14042 order.
The Latest Construction Industry Legal News
With Executive Order 14042 still enjoined at the time of publication, it remains to be seen whether federal contractors will continue to be governed and restricted by this mandate — and in times of legal uncertainty, having sound legal guidance from a source familiar with the construction industry is vital in decision-making. At MNCLS, we have the tools in our toolbox to provide our construction clients with contractor-specific legal counsel while helping them make the best decision for their businesses, their trade partners, and their customers. Contact us today by dialing (651) 484-4412, or complete our online contact form to discuss what our next steps as a team should be.