ACEC National reached out to US DOT to request clarification on the question of whether the vaccination mandate for federal contractors would apply to State DOT or other local agency contracts that include federal transportation funds.
According to the US DOT general counsel’s office, if the source of the funding is from a federal grant, the Executive Order vaccine mandate for contractors does not apply. But if the source of the funding is from a US DOT contract, e.g. a firm contracting directly with FHWA Federal Lands Highway or with FTA for project management oversight services, then the EO vaccine mandate will apply. At press time for this issue of ACEC/MAtters, MassDOT, MBTA and other transportation agencies have not yet announced their requirements. In addition, OSHA regulations are still in development.
Additional information from ACEC National:
1. Several new class deviations and guidance memos have been issued by federal agencies to implement EO 14042:
2. The law firm Crowell & Moring LLP has developed a great matrix that displays all of the previously released deviations, including the types of contracts that are expressly covered, expressly excluded, and “strongly encouraged” to be covered. The matrix can be found HERE.
3. Finally, while we’ve been focusing on EO 14042, which impacts all federal contractors working with the government, OSHA has been drafting their Emergency Temporary Standard (ETS), which, similar to the executive order, would require employees of all companies with 100 or more employees to be vaccinated against COVID-19. That has entered the next step in the process, OSHA has sent the ETS to the Office of Information and Regulatory Affairs (OIRA), a division within the Office of Management and Budget (OMB) that oversees the implementation of government-wide policies and more importantly reviews draft regulations. OIRA is required to follow certain principles, such as consideration of alternatives and analysis of impacts, both benefits and costs.
ACEC is working with the Coalition for Workplace Safety to review the ETS upon its publication and to comment on its impact.
OSHA Sends Employer Vaccine Rule to White House for Final Review
By Ben Penn / October 12, 2021 07:48PM ET / Bloomberg Law
The U.S. Labor Department advanced an emergency regulation for final White House review that will force many private-sector companies to require employee vaccinations or virus testing.
DOL’s Occupational Safety and Health Administration sent the rule to the White House’s regulatory office Tuesday, the agency announced. Although the Office of Information and Regulatory Affairs can sometimes take months to conclude its analysis, President Joe Biden called for an expedited process, which could mean the office will give its OK in as little as a day.
OSHA would then be able to publish the emergency temporary standard, and it would take effect immediately. Historically, the agency has provided businesses with a short period before they’d be required to comply.
The standard implements the president’s Sept. 9 order for a regulation requiring businesses with at least 100 employees to mandate workers get fully vaccinated or be tested weekly for Covid-19. Biden also asked for the rule to provide paid time off for workers to get vaccinated and to recover from any side effects.
An emergency standard bypasses what is normally a years-long regulatory process. To do so, OSHA must establish that the vaccination or testing requirement was necessary to protect workers from a “grave danger.”
“The Occupational Safety and Health Administration has been working expeditiously to develop an emergency temporary standard that covers employers with 100 or more employees to ensure their workers are fully vaccinated or undergo weekly testing to protect employees from the spread of coronavirus in the workplace,” a DOL spokesperson said in an email. “On Tuesday, October 12, as part of the regulatory review process, the agency submitted the initial text of the emergency temporary standard to the Office of Management and Budget.”
To contact the reporter on this story: Ben Penn in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Martha Mueller Neff at email@example.com
Late on 10/1/21: the FAR Council issued the expected contract clause that will impose the previously issued Safer Federal Workforce Taskforce (SFWTF) Guidance’s requirements on contractors and subcontractors, as well as a memorandum providing guidance to agencies regarding its implementation. The new clause and memorandum to agencies are available HERE. Several agencies have taken action to implement EO 14042, issuing class deviation letters listed below to contracting officers.
DoD – Class Deviation 2021-O0009 - Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors – Effective date: 15 Oct 21, More >
GSA – Class Deviation CD-2021-13 - - Implementation of Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors – Effective date: 30 Sep 21, More >
DHS – Class Deviation 22-01 - Executive Order 14042 Ensuring Adequate COVID Safety Protocols for Federal Contractors – Effective date: 1 Oct 21, More >
Millennium Challenge Corporation – Class Deviation - to implement 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors – Effective date: 1 Oct 21, More >
NASA – Class Deviation PCD 21-03 – Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors – Effective date: 1 Oct 20, More >
In addition, the SFWTF has updated FAQs and guidance, specifically as it relates to vaccine exceptions and the process for receiving accommodations from federal agencies; see that guidance HERE.
As a reminder, with agencies now acting to implement EO 14042, ACEC will hold a webinar focusing exclusively on EO 14042 and how it may impact your firm and your firm’s work on Monday, October 11, 1:30 – 3:00 EST and presented by attorneys with the Contracts Practice Group at the firm Covington & Burling: Registration info >
ACEC/MA members only pay the ACEC/MA member rate for registration. Check the ACEC/MA Member Directory to see if your firm is an ACEC/MA member. If your firm is an ACEC/MA member, you are a member.
Important: You must use the account, including the username and password, of the individual you wish to register.
IMPORTANT: Altering your name or contact information during registration will overwrite your record in our membership database. Please do not share your login information with anyone else.
If you have additional questions regarding registration, contact us at 617/227-5551 or firstname.lastname@example.org.
Registration is processed through the ACEC/MA associated website, www.engineers.org. ACEC/MA is supported by the staff of The Engineering Center Education Trust.