Thursday, September 9, 2021: President Biden Mandates COVID-19 Vaccine for Certain Federal Contractors: Exceptions As Interesting As Who is Covered
President Biden exercised the maximum legal pressure he could bring to bear on federal contractors and subcontractors pursuant to the Presidential authority delegated to him by signing an Executive Order (EO) on Ensuring Adequate COVID Safety Protocols for Federal Contractors.
“If you want to work with the federal government and do business with us, get vaccinated. If you want to do business with the federal government, vaccinate your workforce.”
~ President Biden in his address to the American People
What Does the EO Require?
The President’s new EO requires, through a clause the President hopes to cause the U.S. Government Services Administration (GSA) to insert into federal contracts after September 24, 2021, that:
“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 (Task Force Guidance or Guidance).”
Note: As one of his first acts once in The White House, President Biden signed Executive Order 13991 which, among other things, created the Safer Federal Workforce Task Force within the U.S. Government Services Administration. Government contractors, though, may remember this Order for requiring federal employees and federal contractor personnel to wear masks when on-site on federal properties.
But hold on: Task Force Guidance paperwork is not federal Rulemaking. Uh-oh: here are more orders formalized by merely “yelling out the window.” They are not enforceable, as we will see, below. Absent formal Rulemaking, whatever the Safer Workforce Task Force may publish will serve merely as a description of what GSA thinks are “Best Practices” which government contractors and subcontractors may choose to adopt…or not. WOW! You can just see the lawsuit coming on this purported new vaccination mandate…including seeking attorneys’ fees when the litigants prevail.
Important Date: The President’s new Executive Order directs the Safer Workforce Task Force to issue this new vaccine mandate guidance (or is it a requirement? Funny name for a purported legal “requirement”) by September 24, 2021.
In The Know
The President’s new Executive Order requires the Director of the Office of Management and Budget (OMB) to first approve the Task Force Guidance and determine that the Guidance “will promote economy and efficiency in Federal contracting.”(emphasis added for reasons you will see, below) In so doing, the President is seeking to help himself in coming lawsuits challenging the vaccine mandate for federal contractors and subcontractor employees by pointing up his source of legal authority (not implementation of Rulemaking) to issue an Executive Order to compel these vaccinations.
The President, of course, must trace his every action back to one of the two sources of legal authority delegated to him. (With the founding of the United States and the creation of the U.S. Presidency, Americans gave up the European and Asian notions of emperors anointed by divine right to do what they thought best, in their divine discretion, for the people they governed). Instead, Americans adopted a form of “limited government” in which all power not granted to the federal and/or state governments was reserved to the People and every U.S. President had to trace his power to act back to one of his two sources of authority to act. For example:
- Is it a power expressly prescribed for the President in the U.S. Constitution? and/or
- Is there a federal statute which the United States Congress has passed and he or a President before him has signed into law commanding a federal Executive Branch agency the President controls to take the at-issue action (in this case, to order up the mandatory use of vaccines)?
As to the vaccine mandate, neither the Constitution nor any federal Congressional statute prescribes that authority unto the President. However, Article II, Sections 1 and 3 of the U.S. Constitution do identify the President as the chief executive of the Executive Branch. [“The executive power shall be vested in a President of the United States of America.” (See Section 1)]; and that the federal Executive Branch must administer the statutes the Congress passes into law [“…he shall take care that the laws be faithfully executed…”. (See Section 3)].
So, adding these two powers together, the way U.S. Presidents have compelled federal contractors to do things the President wants done is to first invoke their “Chief Executive powers” to run the federal Executive Branch agencies. Then, the President seizes upon a federal statute—in this case the Procurement Act, last amended in 1972 (which authorizes the Chief Executive of the Executive Branch to procure goods and services for the federal government AND, significantly, to “promote the economy and efficiency of Federal Contracting”). (emphasis added, as you previously saw, above). So, a short recitation of how vaccines will help maintain healthy and a sufficient number of employees, help run businesses and help add to supply chain goods and services will establish the legal authority to force vaccinations among the employees of federal contractors, federal subcontractors and grantees providing goods and services to the Executive Branch of the federal government.
But There is More to It Than Just Having the Legal Authority to Act
Aw heck: more stuff to do to get done? The Congress ALSO requires the President to take executive agency action affecting the regulated community by way of federal Rules (i.e., via “Rulemaking”) the Congress requires of federal agencies implementing Congressional statutes. The Congress so requires this of the Executive Branch agencies to provide clarity as to the responsibility of federal contractors/subcontractors/grantees and to provide a “level playing field” by creating a common understanding of the burdens operating on those hoping to be and in contract with the federal government.
So, every federal Executive Branch agency has to first have the legal authority to act upon either or both a delegation of authority to the President from the Constitution or from the Congress. Then, second, that federal agency must then exercise its authority to implement any given statute in a careful and responsible way the Administrative Procedure Act dictates (i.e., by way of public Notice and the receipt and consideration of public Comments. One without the other leaves the President without legal authority to proceed.
|The President needs to have BOTH the legal authority to act AND his federal executive agencies must implement that legal authority in the Congressionally prescribed manner (via Rulemaking).|
Significantly, and problematically for the President, his government contractor, subcontractor/grantee employee Executive Order Vaccine mandate CLEARLY suffers from two different and fundamental legal defects.
- First, as to grantees, the President’s own Executive Order specifically exempts “grants” from its requirement of mandated vaccines for the employees of federal grantees. (It appears there might have been two competing positions on this issue within the Biden White House as staffers debated its contours and footprint. But drafts excluding grants from coverage were apparently circulated for review, but the President’s (perhaps) later decision (written into his Six-Point Covid-19 Plan) was to include them. However, editors within the White House must have forgotten to delete the language in the Executive Order itself expressly exempting “grants” from coverage of the vaccination mandate. The Order’s use of the term “grants,” which is lay language for the proper legal description of “Federal Financial Assistance,” also suggests that time-pressured and informal drafting occurred in this particular Executive Order: a lot of moving parts; so little time to iron it all out.
- Second, under the APA (the “You gotta write it down” law), the President needs GSA to propose and finalize a Rule before it can impose this burden, however well-intentioned the vaccination mandate may be, on almost 1/3rdof the adult population which has decided it does not wish to be vaccinated. This Executive Order consciously anticipates (and in fact hopes for “substantial impact” on the regulated community so as to turn it around and cause perhaps 1/3rd of the remaining unvaccinated employees in America become vaccinated). Once the President concludes that he wants the vaccination mandate to go forward, (and again…even assuming the mandate is well-intentioned and intelligent), the federal agency implementing the mandate has “gotta write it down” in the form of a formal Rulemaking.
To What Contracts Does This EO Apply, Pray Tell?
This EO applies to any new contract; new contract-like instrument; new solicitation for a contract or solicitation for a contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument, if:
- it is a procurement contract or contract-like instrument for services [Editor’s Note: Notice! Not “goods”], construction, or a leasehold interest in real property;
- it is a contract or contract-like instrument for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
- 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); and/or
- 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.
What Contracts Are Exempt From The EO, Pray Tell?
The EO does NOT apply to:
- grants [wait a minute! Come Again! Didn’t the President’s Six-Step Covid-19 Action Plan (discussed at the top of the prior WIR story) state that the President was going to require Medicare and Medicaid participant Hospitals and health care providers to vaccinate their 27 million health care workers? And, isn’t it legally clear that Medicare and Medicaid, both, are “grants” (i.e., “Federal Financial Assistance” in technical legal terms)? [Oh yes, no legal doubt about that conclusion!];
- contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93-638), as amended;
- 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;
- 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
- subcontracts solely for the provision of products. [Emphasis added] Big loophole. But what happens if a company is a subcontractor to provide “products,” but is also a company with 100 or more employees: is that company exempted under the Government Contractor Executive Order, but subject to the vaccination mandate pursuant to the coming OSHA Emergency Rule? Hopefully the OSHA Emergency rule will clarify this issue, since the Biden Administration is (currently) planning no other binding Rule to help clarify this ambiguity. AND, what about the fact that the Executive Order limits its coverage to only “a procurement contract or contract-like instrument for services?” BUT the exemptions section in the new Executive Order states an exemption applicable only to service subcontractors (and not ALL service providers).
The new Executive Order directs GSA to make the new clause–which the White House envisions GSA will simply willy-nilly force-insert into federal contracts and subcontracts–to become effective as to those contracts signed on or after October 15, 2021.
The new Executive Order also identifies several contracting scenarios which the new Executive Order does NOT cover to require vaccination mandates, but as to which the Executive Order nonetheless “strongly encourages” the involved federal agencies to apply the vaccination mandate in their discretion, including to:
- contract solicitations undertaken beforeOctober 15, 2021 for a new contract or contract-like instrument but beginning before November 15, 2021. Note: If that contract or contract-like instrument term is subsequently extended or renewed, or an option is subsequently exercised under that contract or contract-like instrument, the new Executive Order seeks to require the vaccination mandate to apply to that extension, renewal, or option.
- all existing contracts and contract-like instruments and solicitations issued between September 9, 2021and October 15, 2021.
- all contracts and contract-like instruments entered into between September 9, 2021and October 15,
Why Issue This EO?
According to the EO:
“These safeguards will decrease the spread of COVID-19, which will decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors at sites where they are performing work for the Federal Government. Accordingly, ensuring that Federal contractors and subcontractors are adequately protected from COVID-19 will bolster economy and efficiency in Federal procurement.”
(Note the reference to federal procurement, see “In The Know” above)
What Happens Next?
Undoubtedly, law suits will come from all angles. Hang on to your seats (and your masks) as this Executive Order has touched off deeply held emotions among the tens of millions of now very unhappy American employees. For those fully vaccinated, it is hard to understand the fuss about being vaccinated. For those not vaccinated, it is hard to understand why the vaccinated don’t understand their myriad concerns. And both camps ascribe major importance to the resolution of the vaccination question. And, meanwhile President Biden only three months ago thought he was sailing easily to the end of the COVID-19 pandemic and was getting ready to take a bow. Wow! Bam! Seemingly out-of-nowhere: a powerful right uppercutting blow landed square to the jaw. Ouch. Gird for difficult in-fighting ahead.