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New Executive Orders on COVID Vaccination

On Behalf of | Sep 9, 2021 | Uncategorized

On Thursday, September 9, 2021, President Biden issued two new Executive Orders which set new COVID vaccination requirements for federal civil service employees and federal contract employees.

Executive Order 14043 applies to federal civil service employees in the executive branch.  Under E.O. 14043, federal agencies are required to set up program requiring vaccination of civil service employees.  The exact parameters of those programs are not specified in the E.O., which instead cites to forthcoming guidance from the Safer Federal Workforce Task Force, which was then later issued on September 13, 2021.  The Executive Order itself did not set an implementation timeframe, but the White House Press Secretary at a press conference indicated the deadline for covered federal employees to either be vaccinated or to apply for an exemption would be 75 calendar days.   A White House announcement indicated that this vaccination requirement will dovetail with preexisting vaccination requirement at “the Department of Defense, the Department of Veterans Affairs, the Indian Health Service, and the National Institute of Health”.  The Executive Order states that the vaccine requirement will be “subject to such exceptions as required by law”.  The White House Press Secretary indicated that employees could request medical or religious accommodations to exempt them from the vaccination requirement—and that covered employees that did not get vaccinated and were not qualified for an exemption could be subject to adverse actions including removal.

The Safer Federal Workforce Task Force issued “Agency Model Safety Principles” on September 13, 2021, citing E.O. 14042 and 14043.  Under the Agency Model Safety Principles, federal civil service employees are required to be fully vaccinated by November 22, 2021, unless they are legally entitled to a reasonable accommodation.  Employees being vaccinated or recovering from the effects of vaccination are listed in duty status (including possibly earning overtime), including for related travel.  Employees are to be granted paid time off to recover from side effects, and to accompany family members being vaccinated.

E.O. 14043 only covers executive branch employees, but does explicitly extend to nonappropriated fund employees.  E.O. 14043 does not apply to Postal Service employees, as they fall outside the definition of covered employees used in the Executive Order.  However, at the same time that the Executive Order was being issued, the White House also announced that the Department of Labor was preparing a proposed Emergency Temporary Standard (ETS) rulemaking under the Occupational Safety and Health Act (OSHA) which would apply to all employers with more than 100 employees, and which “will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work.”. Under 29 U.S.C. § 652(5), the Postal Service is covered by OSHA regulations, and so coverage for Postal Service employees will derive from the DOL OSHA ETS once issued, not E.O. 14043.  According to the White House announcement, this ETS will also require employers to provide paid time off for employees to get vaccinated and to recover from the side effects of the vaccination.

Legislative branch employees are also excluded from E.O. 14043 because they do not work for executive branch agencies.  However, under § 1341 of the Congressional Accountability Act, legislative branch employees are covered by OSHA regulations, and so the ETS once issued should apply to some legislative branch employees as well, although the exact scope of coverage will depend on the precise terms of the ETS once issued.

Executive Order 14042 applies to federal contract employees. New government contracts and contract extensions are to include new contract language consistent with forthcoming guidelines from the Safer Federal Workforce Task Force, which will be issued on September 24, 2021, subject to approval by the Director of the Office of Management and Budget.  The Executive Order itself does not specify what those guidelines will require, but the White House announcement indicated that the standard for government contractors will be similar to that for civil service employees.  The Executive Order also does not state the precise effective date of these requirements.

Under the Agency Model Safety Principles, contractors not yet contractually required to be vaccinated must either provide proof of vaccination or must prove a negative COVID-19 test less than 3 days old to be allowed entry to federal buildings, unless they are regularly tested under an agency testing program; this restriction also applies if the individual refuses to disclose their vaccination status.  Similar restrictions apply to visitors to federal buildings, unless they are “members of the public entering a Federal building or Federal land to obtain a public service or benefit.”

The Agency Model Safe Principles state that unvaccinated individuals must wear masks indoors under most circumstances and socially distance; fully vaccinated individuals must mask indoors in areas of high or substantial transmission according to CDC data.  The Agency Model Safe Principles also set limitations on federal employee travel for unvaccinated employees, and set procedures for approval of in-person conferences hosted by agencies.  The Agency Model Safe Principles required self-reporting and departure from the workplace of anyone who develops COVID symptoms during the workday. The Agency Model Safe Principles also set monitoring and quarantine requirements for vaccinated employees later exposed to COVID.

Finally, the Agency Model Safe Practices reminded agencies to meet collective bargaining requirements when implementing safety plans (including on a post-implementation basis if necessary).

If you are a federal civil service employee or federal contractor and wish to discuss your rights and obligations under these Executive Orders, please consider contacting Gilbert Employment Law, P.C. to request an initial consultation.