EO 14042 Ensuring Adequate COVID Safety Protocols for Federal Contractors & OSHA Emergency Temporary Standard: Guidance and Considerations Resources

Last Updated 1/18/22:

On September 9, 2021, President Biden issued Executive Order 14042, requiring executive agencies to include a clause in certain federal contracts and contract-like instruments that will require contractors and subcontractors to comply with various COVID-19 safety measures as set forth by the Safer Federal Workforce Taskforce.  On September 24, the Taskforce issued details on broad vaccine requirements for faculty, staff, and students working on 'covered contracts.' While Sec. 5 (b)  of the EO clearly indicated the Order does not apply to grants, the Taskforce guidance to date is silent on this matter, but did note certain cooperative agreements (pg. 3) would be included.  

The EO also tasked the FAR Council with developing a clause “for inclusion in Federal procurement solicitations and contracts subject [to this] order…and take initial steps to implement appropriate policy direction to acquisition offices for use of the clause…”  On October 1 (dated September 30), the FAR Council released "Issuance of Agency Deviations to Implement EO 14042", providing agencies that award contracts under the FAR with initial direction on how to incorporate the clause into solicitations and contracts and implement the Taskforce Guidance. Notably, the FAR Memo reaffirms the Taskforce's strong encouragement to agencies to apply the requirements of its guidance broadly, to apply the clause to contracts even before the October 15 (solicitations) and November 14 (contracts awarded) deadlines, and to apply it to contracts not covered or directly addressed by the order, including contracts under the Simplified Acquisition Threshold.  To be clear, inserting the clause into contracts below the SAT is not a requirement, but a  'strong encouragement.'  How agencies will interpret will likely be included in agency deviation memos, agency guidance, and scheduled webinars.

Also of note, the new FAR deviation clause, FAR 52.223-99, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors, addresses subcontracts in (d).  It directs the contractor to flow down the substance of this clause to contracts at any tier that exceeds the Simplified Acquisition Threshold, indicating it may be possible that a Prime Contractor with a contract under the SAT has the clause included in their contract, and then is not required to flow the clause down to their subcontractors, also under the SAT.  Information regarding subcontracts can also be found in the Taskforce guidance (see  (Q 13 pg. 12) and  (Q21 pg.13 for additional details).  

The clause also incorporates the entirety of the Taskforce Guidance & FAQs during the duration of the contract as amended (including any future guidance and FAQs) conveyed through the Taskforce via  https://www.saferfederalworkforce.gov/contractors/.  We encourage institutions to monitor all federal agreements closely to ensure compliance with agency decisions for incorporating the clause. 

On November 4th, the DOL’s Occupational Safety and Health Administration (OSHA) and the Department of Health and Human Services Centers for Medicare and Medicaid Services (CMS) issued Emergency Temporary Standards (ETS) to serve as proposed rules. The OSHA ETS is issued to protect unvaccinated employees of employers with 100 or more employees from the risk of contracting COVID-19.  The CMS proposed rule is intended to do much the same in order to protect workers at health care facilities participating in Medicare or Medicaid services. Of significant importance is that the OSHA and CMS proposed rules do not apply to workplaces covered under the Safer Federal Workforce Task ForceCOVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors issued September 24, 2021. This is intended to reduce employers from tracking multiple vaccination requirements for the same employees.

On November 30, the Fifth Circuit Court temporarily blocked enforcement of OSHA’s ETS requiring companies with 100 or more employees to receive a COVID-19 vaccination or submit to weekly COVID testing and wear a mask.  The court indicated that OSHA’s ETS did not serve public interest and violates federal and constitutional authority.  Subsequently, OSHA temporarily suspended the ETS until further notice. States with no vaccine mandates have been directed to follow guidance for multi-state employers.  Companies with OSHA state plans should follow regulations in their state.  The ETS will remain suspended until the Sixth Circuit Court of Appeals hears the arguments and decides whether to uphold or lift the suspension. The CMS ETS for health care workers has also been suspended.

On December 7, 2021, the federal court in Georgia issued a preliminary injunction temporarily halting the enforcement of EO 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors) for all covered contracts nation-wide.  New guidance from OMB also followed suit giving federal agencies input on how to go about non-enforcement provisions until legal challenges have been resolved. The updated guidance will remain applicable despite any change to new or existing court decisions.  The new guidance does not impact the Safer Federal Workforce Taskforce Guidance.

On December 17, 2021 the Sixth Circuit Court of Appeals dissolved the nationwide temporary stay under the Fifth Circuit and reinstated OSHA’s ETS requiring large companies to mandate vaccine requirements or submit to weekly testing unless the employee meets certain exemption criteria (i.e. medical or religious reasons or do not come into close contact with other people at their jobs, such as those who work at home or exclusively outdoors). The Six Circuit contended that “OSHA has long asserted its authority to protect workers against infectious diseases.”  The Court also held that held that “OSHA is not required to investigate every business to show that COVID-19 is present in each workplace nor is it required to prove that every worker will experience the same risk of harm” (statement made previously by the Fifth Circuit). Subsequently, the petitioners sought review by the U.S. Supreme Court who expedited the case and will hear oral arguments on January 7, 2022.  The Supreme Court will also hear oral arguments on the CMS vaccine mandate at the same time.

As a result of the reinstated ETS for large employers, OSHA announced on its website that it will not issue citations for noncompliance with the ETS prior to January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9.  As a result of the additional time OSHA is giving companies to come into compliance, a company must exercise reasonably good faith efforts to come into compliance.  Comments to the ETS will be accepted until January 19, 2022, via www.regulations.gov Docket number OSHA-2021-0007.

On December 27, OSHA withdrew the non-recordkeeping portions of the healthcare ETS until a permanent standard for coronavirus-related hazards is promulgated.  The recordkeeping requirements for employers to maintain logs of all employee COVID cases regardless of whether they are considered work-related or not remains in effect as well as the reporting of COVID work-related inpatient hospitalizations within 24 hours and fatalities within 8 hours. Healthcare employees have

OSHA also reminded healthcare facilities that they continue to have an obligation to protect employees in the workplace under the general duty clause. OSHA suggests that employers continue to implement their COVID-19 protocols under the ETS as a best practice.

On December 28, CMS announced via its website that enforcement interim final rule, will begin in a three-phased approach (e.g., 30-60-90 days)  January 27, 2022. Click here for more information. 

On January 5, 2022, the U.S. Postal Service asked OSHA for a 120-day extension to the ETS for large companies in order to allow enough time to update its systems for record collection and bargain with its unions over the details.  The USPS is also experiencing inadequate staffing and resources to carry out the mandate.

On January 13, the Supreme Court voted by a 6-3 majority to dissolve the Sixth Circuit Courts decision to uphold the ETS and reinstate the Fifth Courts decision to eliminate the OSHA ETS.  Among the several reasons cited by the Court, one was clear; instituting such a mandate of this magnitude would require authorization by Congress. The Courts decision does not impact any decisions set forth by state or local governments to require vaccination and/or testing.  The Court subsequently voted to lift the preliminary injunction and uphold the CMS interim rule requiring covered staff to be vaccinated in health care facilities that receive Medicare and Medicaid funding. 

As guidance or other relevant information is released, we will update this webpage.

For questions on the EO or the OSHA ETS, please contact Jackie Bendall at jbendall@cogr.edu.

 

Webcasts & Materials

10/27/21:  Vaccine Mandate Litigation in Higher Education:  Trends, Strategies, and Mitigation (Jackson Lewis) 

10/14/21:  Untangling the Vaccine Mandate: Practical Steps for Contractors to Navigate Executive Order 14042 (Morrison Foerster)

10/13/21:  Industry Engagement Event on GSA's Class Deviation Implementing EO 14042, Hosted by GSA senior acquisition professionals.  Slides are posted, and a recording will be made available the week of 10/22.

 

Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors Resources

3/11/22:  Safer Federal Workforce Updated FAQs

12/13/21:  Executive Order 14042 Requirements for COVID-19 Vaccination of Federal Contractors (Congressional Research Services)

12/9/21:  OMB Updates  Regarding Applicable Court Orders and Injunctions (Safer Federal Workforce)

12/8/21:  Federal vaccine mandates enjoined nationwide: Should employers pause mandatory vaccination efforts (Hogan Lovells)

12/7/21:  Biden Vaccine Mandate for Contractors Blocked Nationwide (2) (Bloomberg Law)

12/2/21:  Class Deviation, Department of Defense (supercedes 10/1/21 Class Dev)

11/29/21Safer Federal Workforce:  Guidance for Federal Contractors and Subcontractors & FAQs for Contractors

11/2/21:  New Federal Contractor COVID-19 Vaccine Mandate FAQs Provide Additional Guidance, Including Expanded Scope of Requirements to Affiliated Companies (National Law Review) 

11/1/21:  Safer Federal Workforce: New FAQs for Vaccinations and Contractors

10/11/21:  Agency Class Deviation Side by Side Comparison (Crowell Moring) 

10/4/21:  Safer Federal Workforce Taskforce:  FAQs on Vaccinations (Updated on Limited Exceptions to Vaccination Requirements and on Vaccination Documentation and Information)

10/1/21:  Assessing the Impact of COVID-19 Federal Contractor Requirements on Colleges and Universities (American Council on Education, also discusses OSHA)

10/1/21:  Safer Federal Workforce Taskforce:  Guidance for Agencies from the FAR Council

10/1/21:  The New COVID-19 Executive Order is Not Just for Contractors (Venable LLP)

9/30/21:  Safer Federal Workforce Taskforce.  FAQs for Contractors

               Guidance on Subcontractors

9/27/21:  Task Force announces details of federal contractor vaccine mandate (Hogan Lovells)

9/24/21:  Safer Federal Workforce Taskforce.  COVID-19 Workplace Safety:  Guidance for Federal Contractors and Subcontractors

 

FAR Class Deviations by Agencies

10/8/21:  NSF:  Class Deviation From the Federal Acquisition Regulation Regarding Implementation of Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors

10/7/21:  HHS:  Class Deviation (2021-03) from the Federal Acquisition Regulation (FAR) Regarding Implementation of Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors  

               Frequently Asked Questions Executive Order 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors & Safer Federal Workforce Taskforce Guidance (10/4/21)

10/5/21Department of Commerce:  Federal Acquisition Regulation Class Deviation: Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors

          Determination and Findings

          Attachment A (FAR Clause)

10/4/21:  Civilian Agency Acquisition Council:  Class Deviation From the FAR Regarding Implementation of Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (dated 9/30)

10/4/21:  Department of Justice:  Federal Acquisition Regulation Class Deviation Regarding Implementation of Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors

10/1/21:  Department of Energy:  Class Deviation from the Federal Acquisition Regulation Regarding Implementation of Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors 

10/1/21:  NASA:  Procurement Class Deviation

10/1/21:   Department of Homeland Security:  Federal Acquisition Regulation Class Deviation (Number 22-01) – Executive Order 14042 Ensuring Adequate COVID Safety Protocols for Federal Contractors

10/1/21:  Millennium Challenge Corporation:  Memorandum for Contracts and Grants Management Division

9/30/21: General Services Administration:  Memorandum for all GSA Contracting Activities

              Significant Changes For the GSA Multiple Award Schedule (MAS) Solicitation and other FAS contract vehicles

9/30/21Department of Defense:  Class Deviation - Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors

9/30/21:  Department of Veterans Affairs:  Office of Acquisition and Logistics, Class Deviation on EO 14042

               Accompanying Memo 10/1/21

 

Agency Guidance & Other Communications

1/3/22:     Return of the Vaccine Mandate: Sixth Circuit Dissolves Stay on Enforcement of OSHA’s Emergency Temporary Standard, Will be Reviewed by the U.S. Supreme Court (JD Supra) 

12/7/21:    Federal District Judge Enjoins the Federal Contractor COVID-19 Vaccine Mandate Nationwide (National Law Review)  

11/10/21:  White House Clarifies Contractor Vaccination Deadline (Government Executive) 

11/9/11:  CPO Memo EO 14042 Ensuring Adequate COVID Safety Protocols for Federal Contractors (Department of Homeland Security, for awards that are not subject to the FAR)

11/9/21:  GSA/FAS Launches Important Customer Tool to Track Progress for E.O.14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors

11/9/21:  Implementation of Executive Order No. 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors – (Contract Like Instruments) (National Park Service) 

11/4/21:  Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies (White House)

10/22/21:  Cooperative Agreement Financial and Administrative Terms and Conditions (CA-FATC) National Science Foundation

10/12/21:  COVID SAFETY PROTOCOLS FOR FEDERAL CONTRACTORS (Department of Energy Order 350.5)

10/6/21:  Planning for Implementing Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (Department of Energy)

9/29/21:  Vaccination Requirement - EO 14042 (USAID) 

9/27/21:  New Procedures for Onsite Contractors in HUD Facilities in Response to COVID-19 Pandemic (HUD)

9/24/21:  Determination of the Promotion of Economy and Efficiency in Federal Contracting Pursuant to EO 14042 (OMB, Federal Register) 

9/20/21:  Update on NASA Implementation of Executive Order 14042 on Ensuring Adequate COVID Safety Protocols for Federal Contractors (NASA)

9/17/21:  Early Engagement Opportunity: Implementation of Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (DOD, Federal Register.  Comments Due 10/17)

9/17/21:  Chief Procurement Officer Message on New Procedures for Contractors in Response to the Ongoing COVID-19 Pandemic (Department of Homeland Security)

9/17/21:  DAD 2021-02: COVID-19 Entry Procedures for On-Site Contractors Reporting to DOT Facilities (Department of Transportation)

9/13/21Coronavirus Vaccination Status & Testing FAQs Download (USDA)

9/10/21:  Ensuring Adequate Safety Protocols for Federal Contractors (Jason Miller, Deputy Director, OMB)

9/2021:  Certification of Vaccination Form (OMB) 

 

OSHA Emergency Temporary Standard Resources

Current:  Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (OSHA) 

11/4/21:  OSHA’s Vaccination and Testing ETS: How You Can Participate:  Fact Sheet

11/4/21:  ETS FAQs (OSHA)

11/4/21: COVID-19 Vaccination and Testing; Emergency Temporary Standard (OSHA)

10/27/21:  EEOC Updates COVID-19 Guidance to Address Vaccine Mandate Religious Exemptions (National Law Review) 

10/13/21OSHA’s Vaccine Mandate Enforcement Likely to Count on Insiders (Bloomberg Law) 

10/7/21:Companies face pressure to act on vaccine mandates even as they wait for clear rules. (New York Times)

9/28/21:  Employer FAQs Regarding COVID-19 Vaccination and Testing Mandate for Federal Contractors and Large Employers (with 100 or more Employees)  Foley & Lardner, LLP

9/14/21:  OSHA Provides Details on Upcoming COVID-19 Emergency Temporary Standard (CUPA-HR)

9/13/21:  OSHA Emergency Temporary Standard would require many employers to mandate vaccine or weekly testing (Hogan Lovells)