On September 9, 2021, the Biden Administration announced a host of vaccine-related initiatives, reported on here. One of those initiatives is an Executive Order which requires contractors to implement the guidance to be published by the Safer Federal Workforce Task Force (the “Task Force”) in “any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument.”  This guidance has yet to be issued, but will include mandatory vaccinations for covered workers.  It expands on the initiative announced in July that required vaccination or testing for government contractor employees working onsite at federal government facilities.  The new Task Force guidance is not expected to include a testing option.

The new requirement will apply to certain new contracts and contract extensions and renewals entered into on or after October 15, 2021.  The Executive Order explains that the requirement will apply to a new contract and contract-like instrument if:

(i)    it is a procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property;
(ii)   it is a contract or contract-like instrument for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
(iii)  it is a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 C.F.R. 4.133(b); or
(iv)   it is a contract or contract-like instrument entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public.

Per the Executive Order, the new requirement will not apply to

(i)    grants;
(ii)   contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93-638), as amended;
(iii)  contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold, as that term is defined in section 2.101 of the Federal Acquisition Regulation [generally $250,000];
(iv)   employees who perform work outside the United States or its outlying areas, as those terms are defined in section 2.101 of the Federal Acquisition Regulation; or
(v)    subcontracts solely for the provision of products.

We will report on new developments related to this initiative.

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