Q: Our agency does some corporate travel work for federal government contractors. On Sept. 9, President Biden issued an executive order adding Covid-19 vaccination requirements for all government contractors and subcontractors. Does the executive order apply to my agency's employees? Do we have to have 100 employees to be covered? What about part-time employees and independent contractors (ICs)? By when must everyone be vaccinated? What is the penalty for noncompliance? How will the government police compliance?
A: The executive order applies to all subcontractors who perform services for most prime government contractors. A different part of the same order applies to every employer with 100 or more employees, but the part dealing with government contractors and subcontractors has no minimum number of employees.
Strictly speaking, the executive order does not mandate vaccinations, but the president has made clear that he expects the follow-up "guidance" to do so. That guidance 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 government contractor travel are subcontractors. If you handle contractor employee travel without a formal contract or with a contract that doesn't incorporate certain clauses of the prime contractor's contract, you would probably not be deemed a subcontractor.
You would probably have to have a written contract that subjects you to certain formal clauses of the prime contract, such as those covering minimum-wage and anti-discrimination requirements. The contract would probably be called a Subcontract 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 timing rules certainly imply that you have to hold such a formal contract.
Under the executive order, after Oct. 15, the vaccination requirement will apply to you starting on the date when the prime contractor enters into a new subcontract with you, formally extends a subcontract or exercises its option to renew a subcontract. The new or renewed subcontract must contain the clause mandating compliance with the guidance issued by the task force.
Until the task force issues its guidance, there are lots of open questions, such as deadlines for vaccinations; whether the requirements apply to part-timers, ICs or home-based staff; and whether the mandate will apply to all employees or only those working on the prime contractor's travel.
The executive order is silent on the topics of enforcement and penalties. However, violation could theoretically result in subcontract termination, suspension or debarment from further subcontracts.
If your agency is located in one of the eight or so states that prohibit employers from requiring vaccinations as a condition of employment, it is very unclear how you will be able to comply with both laws. Perhaps the task force will provide some exceptions to the mandate, but the issues may have to be resolved in court.
Once the task force clarifies the numerous issues, I will write a follow-up Legal Briefs column.