What executive order is the vaccine mandate?

Executive Order Mandating Vaccination of Federal Employees

The first Executive Order, Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees (the “Federal Employee Order”), requires federal employees to be vaccinated against the novel coronavirus and mandates that all federal agencies implement a COVID-19 vaccination requirement program. The Safer Federal Workforce Task Force (“Task Force”), which was established by Executive Order 13991, will issue guidance regarding the vaccination mandate by September 16, 2021. Thus far, the only available information regarding exceptions to the Federal Employee Order is that the mandate is subject to “any exception that is required by law.”

Executive Order Mandating Vaccination of Federal Contractors and Subcontractors

President Biden also issued a second Executive Order, Executive Order on Ensuring Adequate Covid Safety Protocols for Federal Contractors (“Contractor Order”), which likely will require vaccinations for federal contractors and subcontractors. The Contractor Order expressly directs that a new “contract clause”, to be created by the Federal Acquisition Regulatory Council, will be inserted into federal contracts requiring contractors and subcontractors, for the duration of the contract, to comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force (“Task Force”).  Hence, it will be by contract – and not by direct regulation – that federal contractors and their subcontractors of all tiers will be responsible for complying with new COVID-19 protocols to be developed by the Task Force no later than September 24, 2021.

The coverage and scope of the new “contract clause” will be similar to that called for in the Biden Administration’s April 27, 2021 Executive Order on Increasing the Minimum Wage for Federal Contractors.  Specifically, the “contract clause” shall apply, starting October 15, 2021 to:

(1) all new contracts or contract-like instruments (with those terms being defined in the Department of Labor’s implementing proposed regulations on “Increasing the Minimum Wage for Federal Contractors” (86 Fed. Reg. 38816, 38887 (July 22, 2021)) or any resultant final rule),

(2) new solicitation for contracts,

(3) new extensions or renewals of contracts, and

(4) the exercise of options for existing contracts.

While the “contract clause” requirements begin October 15, 2021, the Contractor Order makes clear that “agencies are strongly encouraged, to the extent permitted by law” to include the “contract clause” or otherwise contractually require contractor compliance with COVID-19 protocols prior to the October 15th date.

The kinds of contracts included within the scope of the Contractor Order are:

(a) procurement contracts for services, construction, or leasehold interests in real property;

(b) contracts for services covered by Service Contract Act;

(c) contracts for concessions (including concessions contracts otherwise excluded by Department of Labor regulations); or

(d) contracts entered into with the federal government in connection with federal property or lands and related to offering services for federal employees, dependents, or the general public.

Like the recently promulgated Minimum Wage Executive Order, the Contractor Order will not apply to:

(1) grants,

(2) contracts or agreements under the Indian Self-Determination and Education Assistance Act,

(3) contracts for less than the “simplified acquisition threshold” as defined in Federal Acquisition Regulation 2.101 (generally defined as contracts for less than $250,000, with some exceptions),

(4) employees performing work outside of the United States, or

(5) subcontracts solely to provide products.

Given the overall tenor of the Contractor Order, it is likely that any mandatory FAR clause will include flowdown provisions. So, prime contractors and subcontractors of all tiers should expect to amend their subcontracts to flow down the new FAR clauses (and, by implication, all of the resultant Task Force guidance) to all tiers of subcontractors, consistent with the scope and coverage provisions above. Again, given the nature of the Contractor Order, it is also reasonable to assume that contractor or subcontractor failure to comply with the new FAR clause could result in typical penalties seen in other Executive Orders regulating contractor employee minimum wages and Paid Sick Leave, including contract termination and/or debarment. Contractors and subcontractors are advised to pay close attention to the new FAR clauses and related Task Force guidance when they are issued, as well as subsequent updates from Husch Blackwell  LLP on their effect and scope.

OSHA to Develop New Emergency Temporary Standard Requiring Vaccinations or Testing for Large Employers

The third and likely most expansive measure facing employers comes in the form of an explicit instruction to the Department of Labor/OSHA. President Biden directed OSHA to develop an ETS mandating all employers with 100 or more employees to require employees to either become vaccinated or to provide a weekly negative test result prior to entering the workplace. This requirement is estimated to impact over 80 million workers.

The ETS also will contain a provision requiring employers with 100 or more employees to provide paid time off for workers to (1) receive the vaccination, or (2) recover from any side effects experienced after being vaccinated.

Standard of Issuance of an ETS

The Occupational Safety and Health Act authorizes OSHA to issue an ETS if there is substantial evidence that: (1) “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards;” and (2) an ETS is “necessary” to protect employees from that hazard.  While the bar OSHA must clear here is not particularly high, it is real.  In addition, OSHA’s track record in ETS rulemaking challenges is mixed.  Given the nature of this hazard, OSHA’s recent decision not to issue an ETS that’s applicable to all employees and the fact that a significant percentage of the nation’s workforce will not be covered by the ETS, may present obstacles to issuance and enforcement.

When Will the ETS Take Effect?

There is immense uncertainty regarding when the ETS could be issued and take effect. We know the prior COVID-19 related ETS spent six months in development prior to issuance on June 21, 2021. However, OSHA indicated yesterday that this ETS would be issued in the coming weeks.

We will be monitoring publications from the Task Force, Director, and OSHA, and will provide continued updates regarding the status of the Executive Orders and the temporary rule.

Contact Us

If you have questions about this update and how it impacts your organization, contact Erik Eisenmann, Brian Hendrix, Michael Schrier or your Husch Blackwell attorney.

Your Comprehensive COVID-19 Legal Resource

Section 1.  Policy.  It is the policy of my Administration to halt the spread of coronavirus disease 2019 (COVID-19), including the B.1.617.2 (Delta) variant, by relying on the best available data and science-based public health measures.  The Delta variant, currently the predominant variant of the virus in the United States, is highly contagious and has led to a rapid rise in cases and hospitalizations.  The nationwide public health emergency, first declared by the Secretary of Health and Human Services on January 31, 2020, remains in effect, as does the National Emergency Concerning the Coronavirus Disease 2019 (COVID-19) declared pursuant to the National Emergencies Act in Proclamation 9994 of March 13, 2020 (Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak).  The Centers for Disease Control and Prevention (CDC) within the Department of Health and Human Services has determined that the best way to slow the spread of COVID-19 and to prevent infection by the Delta variant or other variants is to be vaccinated.

COVID-19 vaccines are widely available in the United States.  They protect people from getting infected and severely ill, and they significantly reduce the likelihood of hospitalization and death.  As of the date of this order, one of the COVID-19 vaccines, the Pfizer-BioNTech COVID-19 Vaccine, also known as Comirnaty, has received approval from the Food and Drug Administration (FDA), and two others, the Moderna COVID-19 Vaccine and the Janssen COVID-19 Vaccine, have been authorized by the FDA for emergency use.  The FDA has determined that all three vaccines meet its rigorous standards for safety, effectiveness, and manufacturing quality.

The health and safety of the Federal workforce, and the health and safety of members of the public with whom they interact, are foundational to the efficiency of the civil service.  I have determined that ensuring the health and safety of the Federal workforce and the efficiency of the civil service requires immediate action to protect the Federal workforce and individuals interacting with the Federal workforce.  It is essential that Federal employees take all available steps to protect themselves and avoid spreading COVID-19 to their co-workers and members of the public.  The CDC has found that the best way to do so is to be vaccinated.

The Safer Federal Workforce Task Force (Task Force), established by Executive Order 13991 of January 20, 2021 (Protecting the Federal Workforce and Requiring Mask-Wearing), has issued important guidance to protect the Federal workforce and individuals interacting with the Federal workforce.  Agencies have also taken important actions, including in some cases requiring COVID-19 vaccination for members of their workforce.

Accordingly, building on these actions, and in light of the public health guidance regarding the most effective and necessary defenses against COVID-19, I have determined that to promote the health and safety of the Federal workforce and the efficiency of the civil service, it is necessary to require COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.

Sec. 2.  Mandatory Coronavirus Disease 2019 Vaccination for Federal Employees.  Each agency shall implement, to the extent consistent with applicable law, a program to require COVID-19 vaccination for all of its Federal employees, with exceptions only as required by law.  The Task Force shall issue guidance within 7 days of the date of this order on agency implementation of this requirement for all agencies covered by this order.

Sec. 3.  Definitions.  For the purposes of this order:     (a)  The term “agency” means an Executive agency as defined in 5 U.S.C. 105 (excluding the Government Accountability Office).      (b)  The term “employee” means an employee as defined in 5 U.S.C. 2105 (including an employee paid from nonappropriated funds as referenced in 5 U.S.C. 2105(c)).

Note: More recent COVID-19-related communication may supersede specific information in this announcement. Colleagues, On September 9, 2021, President Joe Biden signed Executive Order 14042, which requires vaccination against COVID-19 for certain employees of federal contractors, like Rutgers.

On September 9, 2021, President Biden issued Executive Order (EO) 14042, which required parties contracting with the federal government to comply with certain COVID-19 safeguards as prescribed by the Safer Federal Workforce Task Force. These safeguards included a requirement that employees of certain federal contractors be vaccinated against COVID-19 during performance of the contract work. The heightened contracting requirements of EO 14042 applied to any new federal contracts and solicitations, any extension or renewal of an existing federal contract, and any exercise of an option in an existing federal contract.

Facing severe backlash, the contractor vaccine requirement in EO 14042 was immediately challenged in the courts, with opponents arguing that President Biden vastly exceeded his executive authority under the Federal Property and Administrative Services Act of 1949 (the “Federal Procurement Act”). In response, the federal government argued for an expansive reading of the Federal Procurement Act in which President Biden was empowered to “issue orders that improve the economy and efficiency of contractors’ operations.”

While the question of President Biden’s authority under the Federal Procurement Act was presented to the courts, the enforcement of EO 14042 came to a screeching halt. On November 30, 2021, the Eastern District of Kentucky issued a preliminary injunction enjoining the federal government from enforcing EO 14042’s vaccine requirement in the states of Kentucky, Ohio, and Tennessee. Then, on December 7, 2021, the Southern District of Georgia similarly issued a preliminary injunction; however, unlike the Eastern District of Kentucky’s injunction, the Southern District of Georgia enjoined enforcement of EO 14042 nationwide.

Altogether, federal trial courts issued no fewer than six preliminary injunctions that prohibited enforcement of EO 14042’s vaccine requirement, and the federal appellate courts were tasked with defining the scope of the President’s authority under the Federal Procurement Act.

The Eleventh Circuit Court of Appeals considered the Southern District of Georgia’s nationwide injunction, and, on August 26, 2022, the court agreed that President Biden exceeded his authority under the Federal Procurement Act. Nonetheless, the Eleventh Circuit narrowed the scope of the previously nationwide injunction, restricting it to the seven states who had originally filed that suit (Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia).

Following the Western District of Louisiana’s issuance of a preliminary injunction in a case brought by the states of Louisiana, Indiana, and Mississippi, a split panel of the Fifth Circuit Court of Appeals agreed with the Eleventh Circuit and affirmed the injunction in that case on December 19, 2022. That injunction applied to only the states bringing the suit.

Most recently, on January 12, 2023, the Sixth Circuit Court of Appeals similarly affirmed the Eastern District of Kentucky’s preliminary injunction, while also limiting the scope of that injunction to the parties in the litigation rather than all contractors throughout Kentucky, Ohio, and Tennessee. Thus, the three federal appellate courts that have reviewed the issue have all agreed that the requirements outlined in EO 14042 exceed President Biden’s authority under the Federal Procurement Act.

What now?

Although the Eleventh Circuit lifted the Southern District of Georgia’s nationwide injunction prohibiting the enforcement of EO 14042, the Biden Administration seemingly acknowledges that EO 14042 may be unenforceable, at least for now.

On October 19, 2022, the Office of Management and Budget (OMB) and the Safer Federal Workforce Task Force issued new guidance on the implementation of EO 14042. In particular, the Biden Administration has directed federal agencies not to (1) take any steps to require covered contractors and subcontractors to come into compliance with previously issued Task Force guidance, or (2) enforce any contract clauses implementing EO 14042.

[See New Deadline to Comply With Federal Order Requiring Coronavirus Vaccines for Updated Information (November 8, 2021)]

October 25, 2021

Colleagues,

On September 9, 2021, President Joe Biden signed Executive Order 14042, which requires vaccination against COVID-19 for certain employees of federal contractors, like Rutgers. In order to comply with this executive order, as well as the subsequent guidance issued by the Federal Worker Safety Task Force, all Rutgers employees must be fully vaccinated against COVID-19 by December 8, 2021.

President Biden’s executive order supersedes other state or local rules, regulations, laws, or executive orders, and provides limited exemptions from the vaccination requirement for medical or religious reasons. It does not allow for a regular testing option for those employees who choose not to be vaccinated. The University will consider requests for exemptions from the executive order’s vaccination requirement for medical or religious reasons. However, if you are not granted an exemption for a medical or religious reason, you must be fully vaccinated against COVID-19 by December 8, 2021.

Employees are considered fully vaccinated against COVID-19 two weeks after receiving the final dose of a vaccine approved or authorized for emergency use in the United States or a vaccine that has been listed for emergency use by the World Health Organization (WHO). Authorized vaccines include those from Moderna, Pfizer-BioNTech, Johnson & Johnson, and AstraZeneca.

Vaccines continue to be a critical tool that help offer us the safest environment possible during the global pandemic.  Vaccination against COVID-19 protects the health and safety of all members of the University community, including students, faculty, staff, patients, and visitors.

How to Upload Your Vaccination Information

For the more than 90 percent of Rutgers employees who have already uploaded their vaccine records, no further action is required. If you are one of the few remaining Rutgers employees who has not yet uploaded proof of vaccination, please take a few minutes and upload your documentation to https://rtr.ipo.rutgers.edu/vaccines. Uploading your documents is simple and easy. If you cannot locate your vaccination information, it may be retrieved through the New Jersey Department of Health at https://njiis.nj.gov/core/web/index.html#/requestImmunizationRecord.

Those seeking a medical or religious exemption are encouraged to do so immediately, but no later than November 8, 2021. Further information can be found at https://policies.rutgers.edu/sites/default/files/100-3-1-current.pdf.

Providing proof of full vaccination by December 8, 2021, is not optional. Failure to provide proof of full vaccination or receive a University-approved exemption by December 8, 2021, will result in disciplinary action up to and including termination.

Vaccination Deadline

If you need to be vaccinated, please do so immediately. In order to meet the required December 8, 2021, deadline, please note the following:

Where to Get Vaccinated

Vaccines are widely and readily available at most health care providers, clinics, or local pharmacies. Rutgers also offers free COVID-19 vaccines to eligible individuals at clinics in Camden, Newark, and Piscataway. No insurance card is required, and walk-ins are accepted. Information on scheduling can be found at https://rutgershealth.org/covid19-vaccine.