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About Those Vaccine Mandates . . .
The airline executives, and other cowards and Lexus leftists in corporate leadership, are either getting bad advice by Big Law (a leftist stronghold) or leveraging the deep state’s lawless tyranny to dominate their workforce. Unless they have received proper contract modifications on federal contracts, they face no federal compulsion.
The executives know that there is no executive order purporting to compel private sector businesses to impose vaccination mandates on their employees. Rather, on the same day two executive orders were issued against the federal workforce and federal contractors, there was only a passage in an “action plan” claiming to direct the Occupational Safety and Health Administration to develop and issue an emergency temporary standard.
Requiring All Employers with 100+ Employees to Ensure their Workers are Vaccinated or Tested Weekly
The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that 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. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.
The private sector employer “requirement” is powerless without OSHA issuing a (fraudulent) emergency temporary standard.
The concept of such a standard is that the Occupational Safety and Health Administration (OSHA) has determined that COVID-19 presents a grave danger to all covered workplaces, and that the ETS is necessary. While the Administration states that such a standard will be promulgated in the “coming weeks,” the last related standard related to healthcare workers took 12 weeks. There will likely thereafter be a break-in period, perhaps six weeks, for which covered employers must comply, on penalty of fines just like every other OSHA standard, up to $14,000.00 per violation for serious offenses.
Sure enough, OSHA has not published an ETS to support the would-be mandates in the private sector vaccine mandate executive order. That leaves the issue of federal contracts, bringing us to two executive orders published in the Federal Register on Sept. 14, 2021. Let’s look at each in turn.
Executive Order 14043, “Requiring Coronavirus Disease 2019 Vaccination for Federal Employees,” for all its wordiness, does not actually cover federal contractors. It specifically refers to “employees” as defined in 5 U.S. Code § 2105. EO 14043 reads in relevant part [emphasis added]:
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 [Safer Federal Workforce] 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)).
Turning to 5 U.S. Code § 2105, we find:
(a)For the purpose of this title, “employee”, except as otherwise provided by this section or when specifically modified, means an officer and an individual who is—(1)appointed in the civil service by one of the following acting in an official capacity—(A)the President;
(B)a Member or Members of Congress, or the Congress;
(C)a member of a uniformed service;
(D)an individual who is an employee under this section;
(E)the head of a Government controlled corporation; or
(F)an adjutant general designated by the Secretary concerned under section 709(c) of title 32;
(2)engaged in the performance of a Federal function under authority of law or an Executive act; and
(3)subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position.
(b)An individual who is employed at the United States Naval Academy in the midshipmen’s laundry, the midshipmen’s tailor shop, the midshipmen’s cobbler and barber shops, and the midshipmen’s store, except an individual employed by the Academy dairy (if any), and whose employment in such a position began before October 1, 1996, and has been uninterrupted in such a position since that date is deemed an employee.
(c)An employee paid from nonappropriated funds of the Army and Air Force Exchange Service, Navy Ships Stores Program, Navy exchanges, Marine Corps exchanges, Coast Guard exchanges, and other instrumentalities of the United States under the jurisdiction of the armed forces conducted for the comfort, pleasure, contentment, and mental and physical improvement of personnel of the armed forces is deemed not an employee for the purpose of—(1)laws administered by the Office of Personnel Management, except—(A)section 7204;
(B)as otherwise specifically provided in this title;
(C)the Fair Labor Standards Act of 1938;
(D)for the purpose of entering into an interchange agreement to provide for the noncompetitive movement of employees between such instrumentalities and the competitive service; or
(E)subchapter V of chapter 63, which shall be applied so as to construe references to benefit programs to refer to applicable programs for employees paid from nonappropriated funds; or
(2)subchapter I of chapter 81, chapter 84 (except to the extent specifically provided therein), and section 7902 of this title.
This subsection does not affect the status of these nonappropriated fund activities as Federal instrumentalities.
(d)A Reserve of the armed forces who is not on active duty or who is on active duty for training is deemed not an employee or an individual holding an office of trust or profit or discharging an official function under or in connection with the United States because of his appointment, oath, or status, or any duties or functions performed or pay or allowances received in that capacity.
(e)Except as otherwise provided by law, an employee of the United States Postal Service or of the Postal Regulatory Commission is deemed not an employee for purposes of this title.
(f)For purposes of sections 1212, 1213, 1214, 1215, 1216, 1221, 1222, 2302, and 7701, employees appointed under chapter 73 or 74 of title 38 shall be employees. [This refers to the Veterans’ Administration.]
There is not one word about contractors, including contracted service providers like airlines. Yet, the falsely named Safer Federal Workforce Task Force has gone back to the left’s old trick of issuing coercive advice without proper rule-making process. Watch this language carefully:
Q: Can agencies incorporate vaccination requirements into contracts that are not covered by Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Contractors)?
A: Yes. Agencies are strongly encouraged to incorporate vaccination requirements into contracts that are not covered by Executive Order 14042, consistent with applicable law. This might include, for example, incorporating vaccination requirements into contracts in advance of when they are otherwise required by the Executive Order or incorporating requirements into contracts that are not covered by the Executive Order, such as contracts under the Simplified Acquisition Threshold. Implementation of such additional requirements should generally follow the Safer Federal Workforce Task Force’s guidance for implementing the vaccination requirement in Executive Order 14042.
Notice that Executive Order 14043, with the purported COVID vaccination mandate, is silent on contractors of any kind. Instead, you see the task force bootstrapping Executive Order 14042, “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors.” Yet, that EO, put forth the same day as EO 14043, is silent on vaccination. See for yourself.* Moreover, contracts are contracts, so every agency must properly use the federal contracting process to seek a modification of existing contracts and to add an enforceable clause to new contracts. That comes across in the lengthy federal contractor “guidance” spewed by the task force in FAQ form:
Scope and Applicability of Task Force Guidance for Federal Contractors
Q: By when must the requirements of Executive Order 14042 be reflected in contracts?A: Section 6 of the order lays out a phase-in of the requirements for covered contracts as follows:
Contracts awarded prior to October 15 where performance is ongoing – the requirements must be incorporated at the point at which an option is exercised or an extension is made.
New contracts – the requirements must be incorporated into contracts awarded on or after November 14. Between October 15 and November 14, agencies must include the clause in the solicitation and are encouraged to include the clause in contracts awarded during this time period but are not required to do so unless the solicitation for such contract was issued on or after October 15.
Q: Must the requirements of Executive Order 14042 be flowed down to all lower-tier subcontractors and, if so, who is responsible for flowing the clause down?A: Yes. The requirements in the order apply to subcontractors at all tiers, except for subcontracts solely for the provision of products. The prime contractor must flow the clause down to first-tier subcontractors; higher-tier subcontractors must flow the clause down to the next lower-tier subcontractor, to the point at which subcontract requirements are solely for the provision of products.
Q: Does the Task Force Guidance for Federal Contractors and Subcontractors apply to small businesses?
A: Yes, the requirement to comply with the Task Force Guidance applies equally to covered contractors regardless of whether they are a small business. This broad application of COVID-19 guidance will more effectively decrease the spread of COVID-19, which, in turn, will decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors at workplaces where they are performing work for the Federal Government.
A: The FAR Council will conduct a rulemaking to amend the FAR to include a clause that requires covered contractors performing under FAR-based contracts to comply with the Task Force guidance for contractor and subcontractor workplace locations. Prior to rulemaking, the FAR Council has developed a clause and recommended that agencies exercise their authority to deviate from the FAR using the procedures set forth in subpart 1.4. Agencies responsible for contracts and contract-like instruments that are not subject to the FAR, such as concession contracts, will be responsible for developing appropriate guidance by October 8, 2021 to incorporate requirements into their covered instruments entered into on or after October 15, 2021.
Q: Can agencies incorporate vaccination requirements into contracts that are not covered by Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Contractors)?
A: Yes. Consistent with applicable law, agencies are strongly encouraged to incorporate a clause requiring compliance with the Task Force Guidance for Federal Contractors and Subcontractors into contracts that are not covered or directly addressed by Executive Order 14042 because the contract is under the Simplified Acquisition Threshold as defined in section 2.101 of the FAR or is a contract or subcontract for the manufacturing of products. Agencies are also strongly encouraged to incorporate a clause requiring compliance with the Task Force Guidance into existing contracts and contract-like instruments prior to the date upon which the order requires inclusion of the clause.
Q: If the Safer Federal Workforce Task Force updates its Guidance for Federal Contractors and Subcontractors to add new requirements, do those requirements apply to existing contracts?
A: Yes. Covered contractors are required to, for the duration of the contract, comply with all Task Force Guidance for contractor or subcontractor workplace locations, including any new Guidance where the OMB Director approves the Guidance and determines that adherence to the Guidance will promote economy and efficiency in Federal contracting. The Task Force and OMB plan to ensure any workplace safety protocols reflect what is necessary to decrease the spread of COVID-19.
[Note they are cutting out OSHA, with its emergency temporary standard process. Yet, they claim this is about workplace safety, in addition to floating the “economy and efficiency” catchall phrase.]
Q: What constitutes work performed “in connection with” a covered contract?
A: Employees who perform duties necessary to the performance of the covered contract, but who are not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review, perform work in connection with a Federal Government contract.
Q: Do the workplace safety protocols in the Task Force Guidance for Federal Contractors and Subcontractors apply to covered contractor employees who perform work outside the United States?
A: No. The workplace safety protocols in the Task Force Guidance do not apply to covered contractor employees who only perform work outside the United States or its outlying areas, as those terms are defined in section 2.101 of the FAR.
I claim no expertise in this area of federal law and administrative procedure, yet there seem to be many words with little citation to law or regulation in this whole kettle of fish. Perhaps a member with more knowledge can trace the likelihood of these executive exercises holding up to legal challenge. Is this mostly smoke, providing an appearance of doing something whilst giving cover to corporate colluders?
* Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors
Published in Domestic PolicySEPTEMBER 09, 2021
•PRESIDENTIAL ACTIONS
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Federal Property and Administrative Services Act, 40 U.S.C. 101 et seq., and section 301 of title 3, United States Code, and in order to promote economy and efficiency in procurement by contracting with sources that provide adequate COVID-19 safeguards for their workforce, it is hereby ordered as follows:Section 1. Policy. This order promotes economy and efficiency in Federal procurement by ensuring that the parties that contract with the Federal Government provide adequate COVID-19 safeguards to their workers performing on or in connection with a Federal Government contract or contract-like instrument as described in section 5(a) of this order. 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.
Sec. 2. Providing for Adequate COVID-19 Safety Protocols for Federal Contractors and Subcontractors. (a) Executive departments and agencies, including independent establishments subject to the Federal Property and Administrative Services Act, 40 U.S.C. 102(4)(A) (agencies), shall, to the extent permitted by law, ensure that contracts and contract-like instruments (as described in section 5(a) of this order) include a clause that the contractor and any subcontractors (at any tier) shall incorporate into lower-tier subcontracts. This clause shall specify 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), provided that the Director of the Office of Management and Budget (Director) approves the Task Force Guidance and determines that the Guidance, if adhered to by contractors or subcontractors, will promote economy and efficiency in Federal contracting. This clause shall apply to any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument (as described in section 5(a) of this order).
(b) By September 24, 2021, the Safer Federal Workforce Task Force (Task Force) shall, as part of its issuance of Task Force Guidance, provide definitions of relevant terms for contractors and subcontractors, explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance, and any exceptions to Task Force Guidance that apply to contractor and subcontractor workplace locations and individuals in those locations working on or in connection with a Federal Government contract or contract-like instrument (as described in section 5(a) of this order).
(c) Prior to the Task Force publishing new Guidance related to COVID-19 for contractor or subcontractor workplace locations, including the Guidance developed pursuant to subsection (b) of this section, the Director shall, as an exercise of the delegation of my authority under the Federal Property and Administrative Services Act, see 3 U.S.C. 301, determine whether such Guidance will promote economy and efficiency in Federal contracting if adhered to by Government contractors and subcontractors. Upon an affirmative determination by the Director, the Director’s approval of the Guidance, and subsequent issuance of such Guidance by the Task Force, contractors and subcontractors working on or in connection with a Federal Government contract or contract-like instrument (as described in section 5(a) of this order), shall adhere to the requirements of the newly published Guidance, in accordance with the clause described in subsection (a) of this section. The Director shall publish such determination in the Federal Register.
(d) Nothing in this order shall excuse noncompliance with any applicable State law or municipal ordinance establishing more protective safety protocols than those established under this order or with any more protective Federal law, regulation, or agency instructions for contractor or subcontractor employees working at a Federal building or a federally controlled workplace.
(e) For purposes of this order, the term “contract or contract-like instrument” shall have the meaning set forth in the Department of Labor’s proposed rule, “Increasing the Minimum Wage for Federal Contractors, ” 86 Fed. Reg. 38816, 38887 (July 22, 2021). If the Department of Labor issues a final rule relating to that proposed rule, that term shall have the meaning set forth in that final rule.Sec. 3. Regulations and Implementation. (a) The Federal Acquisition Regulatory Council, to the extent permitted by law, shall amend the Federal Acquisition Regulation to provide for inclusion in Federal procurement solicitations and contracts subject to this order the clause described in section 2(a) of this order, and shall, by October 8, 2021, take initial steps to implement appropriate policy direction to acquisition offices for use of the clause by recommending that agencies exercise their authority under subpart 1.4 of the Federal Acquisition Regulation.
(b) By October 8, 2021, agencies shall take steps, to the extent permitted by law, to exercise any applicable authority to ensure that contracts and contract-like instruments as described in section 5(a) of this order that are not subject to the Federal Acquisition Regulation and that are entered into on or after October 15, 2021, consistent with the effective date of such agency action, include the clause described in section 2(a) of this order.Sec. 4. Severability. If any provision of this order, or the application of any provision of this order to any person or circumstance, is held to be invalid, the remainder of this order and its application to any other person or circumstance shall not be affected thereby.
Sec. 5. Applicability. (a) This order shall apply to any new contract; new contract-like instrument; new solicitation for a contract or 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:
(i) it is a procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property;
(ii) it is a contract or contract-like instrument for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;
(iii) 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); or
(iv) 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;
(b) This order shall not apply to:
(i) grants;
(ii) contracts, contract-like instruments, or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act (Public Law 93-638), as amended;
(iii) 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;
(iv) 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
(v) subcontracts solely for the provision of products.Sec. 6. Effective Date. (a) Except as provided in subsection (b) of this section, this order is effective immediately and shall apply to new contracts; new contract-like instruments; new solicitations for contracts or contract-like instruments; extensions or renewals of existing contracts or contract-like instruments; and exercises of options on existing contracts or contract-like instruments, as described in section 5(a) of this order, where the relevant contract or contract-like instrument will be entered into, the relevant contract or contract-like instrument will be extended or renewed, or the relevant option will be exercised, on or after:
(i) October 15, 2021, consistent with the effective date for the action taken by the Federal Acquisition Regulatory Council pursuant to section 3(a) of this order; or
(ii) for contracts and contract-like instruments that are not subject to the Federal Acquisition Regulation and where an agency action is taken pursuant to section 3(b) of this order, October 15, 2021, consistent with the effective date for such action.(b) As an exception to subsection (a) of this section, where agencies have issued a solicitation before the effective date for the relevant action taken pursuant to section 3 of this order and entered into a new contract or contract-like instrument resulting from such solicitation within 30 days of such effective date, such agencies are strongly encouraged to ensure that the safety protocols specified in section 2 of this order are applied in the new contract or contract-like instrument. But 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 safety protocols specified in section 2 of this order shall apply to that extension, renewal, or option.
(c) For all existing contracts and contract-like instruments, solicitations issued between the date of this order and the effective dates set forth in this section, and contracts and contract-like instruments entered into between the date of this order and the effective dates set forth in this section, agencies are strongly encouraged, to the extent permitted by law, to ensure that the safety protocols required under those contracts and contract-like instruments are consistent with the requirements specified in section 2 of this order.Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.JOSEPH R. BIDEN JR.
THE WHITE HOUSE,
September 9, 2021.
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OSHA has a pretty rigorous process for creating standards, which involves comment periods and litigation.
If you wonder why Texas or Florida is not litigating this standard, it is because there is literally nothing to litigate.
Employers are just working off of Biden’s statement.
Some fun facts: OSHA has separate standards for general industry, construction, and longshoring. There’s also a whole agency just for mining (MSHA). Many states have their own state agency that enforces OSHA standards and can create standards of their own, so keep an eye on them.
Why do I feel as if all of us are slowly being strangled . . .
Enthusiastically.
We’re a month in and my major command still doesn’t have guidance on how to implement this executive order. The latest memo from headquarters says that we have to be fully vaccinated by 22 November. Therefore, you have to have the first Moderna dose by 11 October, the first Pfizer dose by 18 October, the second dose by 8 November, or the only dose of the Janssen by 8 November. Then there’s this paragraph:
I’m thinking the lawyers are trying to figure out how to refuse exemptions and deal with HR now having to handle private medical information.
I don’t believe the actual order will be issued, lest it be challenged in court.
It’s just a strong-arm tactic, and it’s working as planned.
Yep. But . . . what would prevent employees from bringing their employers to court? May a trillion lawsuits bloom!
As a career federal contracts attorney I can vouch for this. Contractors know how to enforce the written terms of their contracts and do so except when either: (1) they want the government to impose that requirement, or (2) they fear not getting the profits from the next federal contract. It is important to know which is in play for whom.
For the record, I discussed this point more briefly on an earlier post Illegal Mandates and NBA Stars
I appreciate your observation from an expert vantage point.
I think I am talking about the current state of play, the rules as they are, while you may be arguing for a change in the amount of deference the judiciary shows the executive.
While being boiled.
I got the blender.
I’ve lost count of the number of car batteries that should be chained together so the current can be run through Fauci’s testicles for the rest of his days on this earth.