On July 29, 2021, the Biden administration announced that federal employees and onsite contractors must attest to being fully vaccinated against COVID-19 or they will be required to wear a mask on the job and physically distance, comply with at least a weekly screening testing requirement, and restrict official travel. Private employers are encouraged to adopt similar safety protocols; such protocols will likely be required for federal contractors. Specifically, President Biden noted in his remarks that he was “directing [his] administration to take steps to apply similar standards to all federal contractors. If you want to do business with the federal government, get your workers vaccinated.”
President Biden also stated that local communities and local businesses can mandate vaccines but that “it’s still a question whether the federal government can mandate the whole country.” The announcement of these new safety principles closely follows the publication of the Department of Justice’s opinion on Monday, July 26, which concluded that section 564 of the Food, Drug, and Cosmetic Act does not prohibit public and private entities from imposing vaccine requirements, even when the vaccines are available only through emergency use authorization.
President Biden’s announcement essentially extends his January 20, 2021, Executive Order 13991 (Protecting the Federal Workforce and Requiring Mask-Wearing), which ordered federal employees, onsite contractors and other individuals in federal buildings and on federal lands to wear masks, maintain physical distance and adhere to other public health measures, as provided in CDC guidelines. He created the Safer Federal Workforce Task Force to oversee the development and implementation of agency COVID-19 workplace safety plans across the federal government. On July 29, 2021, the taskforce issued its COVID-19 Workplace Safety: Agency Model Safety Principles for federal agencies for their COVID-19 workplace safety plans.
These principles also require fully vaccinated employees, onsite contractors and visitors to wear masks in public indoor settings in areas of high or substantial transmission, whereas individuals who are not fully vaccinated must wear a mask regardless of community transmission level. Federal agencies will be responsible for enforcement and will need to obtain attestations from federal employees and onsite contractors to confirm their vaccination status, or they will be treated as not fully vaccinated for purposes of safety protocols. Federal agencies also must establish a program to test federal employees and onsite contractors who are not fully vaccinated at least weekly. Employees and on-site contractors will be required to also regularly complete virtual or in-person health checks that ask about symptoms, testing and close contact with individuals with COVID-19.
Significant questions remain regarding the manner in which the administration plans to implement these rules beyond onsite contractors to all federal contractors, including timing and scope. Given the urgency expressed by President Biden, a prompt executive order is likely, requiring similar safety protocols for federal contractor employees (to either provide an attestation of vaccination or wear masks, maintain physical distance and comply with at least weekly screening testing).
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This developing situation will be covered in future alerts as additional information is released. If you have any questions about these matters, please contact one of the Faegre Drinker professionals below or any member of Faegre Drinker’s OFCCP Compliance team for further details.