[Federal Register Volume 86, Number 218 (Tuesday, November 16, 2021)]
[Notices]
[Pages 63418-63425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24949]
=======================================================================
-----------------------------------------------------------------------
OFFICE OF MANAGEMENT AND BUDGET
Determination of the Acting OMB Director Regarding the Revised
Safer Federal Workforce Task Force Guidance for Federal Contractors and
the Revised Economy & Efficiency Analysis
AGENCY: Executive Office of the President, Office of Management and
Budget.
ACTION: Notice of determination; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Director of the Office of Management and Budget (``OMB'')
determines that compliance by Federal contractors and subcontractors
with the COVID-19 workplace safety protocols detailed in the Safer
Federal Workforce Task Force (``Safer Federal Workforce Task Force'' or
the ``Task Force'') guidance (the ``Guidance'') to be issued on
November 10, 2021, will promote economy and efficiency in Federal
contracting by reducing absenteeism and decreasing labor costs for
contractors and subcontractors working on or in connection with a
Federal Government contract, and the Director approves the guidance.
This notice accordingly rescinds and supersedes the Director's prior
notice issued on September 24, 2021.
DATES: To be ensured consideration, comments must be received on or
before December 16, 2021.
ADDRESSES: You should submit comments via the Federal eRulemaking
Portal at https://www.regulations.gov/. Follow the instructions for
submitting comments.
Please be advised OMB will post all comments received that relate
to this notice of determination on https://www.regulations.gov without
making any change to the comments or redacting any information.
All comments posted are available and accessible to the public. So,
do not include any information you would not like to be made publicly
available, such as Social Security numbers, personal addresses,
telephone numbers, and email addresses. It is the responsibility of the
commenter to safeguard personal information.
FOR FURTHER INFORMATION CONTACT: Cristin Dorgelo, 725 17th Street NW,
Email address: [email protected], telephone number: (202)
456-4066. Because of delays in the receipt of regular mail related to
security screening, respondents are encouraged to use electronic
communications.
SUPPLEMENTARY INFORMATION: Section 2 of Executive Order 14042
(``Executive Order 14042'' or the ``order'') requires that, before
Federal contractors and subcontractors must adhere to any guidance from
the Task Force, the Director of OMB must approve such guidance and
determine that such guidance will promote economy and efficiency in
Federal contracting if adhered to by Government contractors and
subcontractors. Based on my review of the Task Force's COVID-19
Workplace Safety: Guidance for Federal Contractors and Subcontractors,
scheduled for issuance on November 10, 2021 (reproduced in relevant
part in Part I below), as well as the economy-and-efficiency analysis
presented in Part II below, and exercising the President's authority
under the Federal Property and Administrative Services Act (see 3
U.S.C. 301) delegated to me through Executive Order 14042, I approve
the Guidance and have determined that the COVID-19-workplace safety
protocols detailed in that Guidance will promote economy and efficiency
in Federal contracting if adhered to by Government contractors and
subcontractors. This notice accordingly rescinds and supersedes my
prior notice issued on September 24, 2021. 86 FR 53691.
This notice consists of the following sections. Part I consists of
revised Guidance from the Task Force. Part II consists of an economic
analysis of the COVID-19-workplace safety protocols detailed in such
Guidance and the effect on economy and efficiency in Federal
procurement. Part III addresses procedural requirements.
Part I. Safer Federal Workforce Task Force Guidance
On September 9, President Biden announced his Path Out of the
Pandemic: COVID-19 Action Plan. One of the main goals of this science-
based plan is to get more people vaccinated. As part of that plan, the
President signed Executive Order 14042, Ensuring Adequate COVID Safety
Protocols for Federal Contractors, which directs executive departments
and agencies, including independent establishments subject to the
Federal Property and Administrative Services Act, 40 U.S.C. 102(4)(A),
to ensure that covered contracts and contract-like instruments include
a clause (``the 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 Task Force,
provided that the Director of OMB approves the Task Force Guidance and
determines that the Guidance, if adhered to by covered contractors,
will promote economy and efficiency in Federal contracting.
The actions directed by the order will ensure that parties who
contract with the Federal Government provide COVID-19 safeguards in
workplaces with individuals working on or in connection with a Federal
Government contract or contract-like instrument. These workplace safety
protocols will apply to all covered contractor employees, including
contractor or subcontractor employees in covered contractor workplaces
who are not working on a Federal Government contract or contract-like
instrument. These safeguards will decrease the spread of SARS-CoV-2,
the virus that causes COVID-19, which will decrease worker absence,
reduce labor costs, and improve the efficiency of contractors and
subcontractors performing work for the Federal Government.
Pursuant to this Guidance, and in addition to any requirements or
workplace safety protocols that are applicable because a contractor or
subcontractor employee is present at a Federal workplace, Federal
contractors and subcontractors with a covered contract will be required
to conform to the following workplace safety protocols:
1. COVID-19 vaccination of covered contractor employees, except
in limited circumstances where an employee is legally entitled to an
accommodation;
2. Compliance by individuals, including covered contractor
employees and visitors, with the Guidance related to masking and
physical distancing while in covered contractor workplaces; and
3. Designation by covered contractors of a person or persons to
coordinate COVID-19 workplace safety efforts at covered contractor
workplaces.
The order also sets out a process for OMB and the Safer Federal
Workforce Task Force to update the Guidance for covered contractors,
which the Task Force will consider doing based on future changes to
Centers for Disease Control and Prevention (``CDC'') COVID-19 guidance
and as warranted by the circumstances of the pandemic and public health
conditions. It also sets out a process for the Federal Acquisition
[[Page 63419]]
Regulatory Council (``FAR Council'') to implement such protocols and
guidance for covered Federal procurement solicitations and contracts
subject to the Federal Acquisition Regulation (``FAR'') and for
agencies that are responsible for covered contracts and contract-like
instruments not subject to the FAR to take prompt action to ensure that
those covered contracts and contract-like instruments include the
clause, consistent with the order.
Covered contractors shall adhere to the requirements of this
Guidance.
A. Definitions
Community transmission--means the level of community transmission
as set forth in the CDC COVID-19 Data Tracker County View.\1\
---------------------------------------------------------------------------
\1\ CDC, COVID-19 Integrated County View, https://covid.cdc.gov/covid-data-tracker/#county-view.
---------------------------------------------------------------------------
Contract and contract-like instrument--has the meaning set forth in
the Department of Labor's proposed rule, ``Increasing the Minimum Wage
for Federal Contractors,'' 86 FR 38816, 38887 (July 22, 2021). If the
Department of Labor issues a final rule relating to that proposed rule,
this term shall have the meaning set forth in that final rule.
That proposed rule defines a contract or contract-like instrument
as an agreement between two or more parties creating obligations that
are enforceable or otherwise recognizable at law. This definition
includes, but is not limited to, a mutually binding legal relationship
obligating one party to furnish services (including construction) and
another party to pay for them. The term contract includes all contracts
and any subcontracts of any tier thereunder, whether negotiated or
advertised, including any procurement actions, lease agreements,
cooperative agreements, provider agreements, intergovernmental service
agreements, service agreements, licenses, permits, or any other type of
agreement, regardless of nomenclature, type, or particular form, and
whether entered into verbally or in writing. The term contract shall be
interpreted broadly as to include, but not be limited to, any contract
within the definition provided in the FAR at 48 CFR chapter 1 or
applicable Federal statutes. This definition includes, but is not
limited to, any contract that may be covered under any Federal
procurement statute. Contracts may be the result of competitive bidding
or awarded to a single source under applicable authority to do so. In
addition to bilateral instruments, contracts include, but are not
limited to, awards and notices of awards; job orders or task letters
issued under basic ordering agreements; letter contracts; orders, such
as purchase orders, under which the contract becomes effective by
written acceptance or performance; exercised contract options; and
bilateral contract modifications. The term contract includes contracts
covered by the Service Contract Act, contracts covered by the Davis-
Bacon Act, concessions contracts not otherwise subject to the Service
Contract Act, and contracts in connection with Federal property or land
and related to offering services for Federal employees, their
dependents, or the general public.
Contractor or subcontractor workplace location--means a location
where covered contract employees work, including a covered contractor
workplace or Federal workplace.
Covered contract--means any contract or contract-like instrument
that includes the clause described in Section 2(a) of the order.
Covered contractor--means a prime contractor or subcontractor at
any tier who is party to a covered contract.
Covered contractor employee--means any full-time or part-time
employee of a covered contractor working on or in connection with a
covered contract or working at a covered contractor workplace. This
includes employees of covered contractors who are not themselves
working on or in connection with a covered contract.
Covered contractor workplace--means a location controlled by a
covered contractor at which any employee of a covered contractor
working on or in connection with a covered contract is likely to be
present during the period of performance for a covered contract. A
covered contractor workplace does not include a covered contractor
employee's residence.
Federal workplace--means any place, site, installation, building,
room, or facility in which any Federal executive department or agency
conducts official business, or is within an executive department or
agency's jurisdiction, custody, or control.
Fully vaccinated--people are considered fully vaccinated for COVID-
19 two weeks after they have received the second dose in a two-dose
series, or two weeks after they have received a single-dose vaccine.\2\
There is currently no post-vaccination time limit on fully vaccinated
status; should such a limit be determined by the Centers for Disease
Control and Prevention, that limit will be considered by the Task Force
and OMB for possible updating of this Guidance.
---------------------------------------------------------------------------
\2\ CDC, When You've Been Fully Vaccinated (last updated Oct.
15, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html.
---------------------------------------------------------------------------
For purposes of this Guidance, people are considered fully
vaccinated if they have received COVID-19 vaccines currently approved
or authorized for emergency use by the U.S. Food and Drug
Administration (Pfizer-BioNTech, Moderna, and Johnson & Johnson [J&J]/
Janssen COVID-19 vaccines) or COVID-19 vaccines that have been listed
for emergency use by the World Health Organization (e.g., AstraZeneca/
Oxford). More information is available at Interim Clinical
Considerations for Use of COVID-19 Vaccines [bond] CDC.\3\
---------------------------------------------------------------------------
\3\ CDC, Interim Clinical Considerations for Use of COVID-19
Vaccines, https://www.cdc.gov/vaccines/covid-19/clinical-considerations/covid-19-vaccines-us.html.
---------------------------------------------------------------------------
Clinical trial participants from a U.S. site who are documented to
have received the full series of an ``active'' (not placebo) COVID-19
vaccine candidate, for which vaccine efficacy has been independently
confirmed (e.g., by a data and safety monitoring board), can be
considered fully vaccinated two weeks after they have completed the
vaccine series. Currently, the Novavax COVID-19 vaccine meets these
criteria. More information is available at the CDC website.\4\
---------------------------------------------------------------------------
\4\ CDC, People who received COVID-19 vaccine as part of a
clinical trial in the United States, https://www.cdc.gov/vaccines/covid-19/clinical-considerations/covid-19-vaccines-us.html#vaccinated-part-clinical-trail.
---------------------------------------------------------------------------
Mask--means any mask that is consistent with CDC
recommendations.\5\ This may include the following: Disposable masks,
masks that fit properly (snugly around the nose and chin with no large
gaps around the sides of the face), masks made with breathable fabric
(such as cotton), masks made with tightly woven fabric (i.e., fabrics
that do not let light pass through when held up to a light source),
masks with two or three layers, masks with inner filter pockets, and
filtering facepiece respirators that are approved by the National
Institute for Occupational Safety and Health or consistent with
international standards. The following do not constitute masks for
purposes of this Guidance: Masks with exhalation valves, vents, or
other openings; face shields only (without mask); or masks with single-
layer fabric or thin fabric that does not block light.
---------------------------------------------------------------------------
\5\ CDC, Types of Masks and Respirators (Sept. 23, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/types-of-masks.html.
---------------------------------------------------------------------------
B. Requirements
Covered contractors are responsible for ensuring that covered
contractor employees comply with the workplace
[[Page 63420]]
safety protocols detailed below. Covered contractor employees must also
comply with agency COVID-19 workplace safety requirements while in
Federal workplaces.
Consistent with applicable law, agencies are strongly encouraged to
incorporate a clause requiring compliance with this Guidance into
contracts that are not covered or directly addressed by the order
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 this Guidance into existing contracts and
contract-like instruments prior to the date upon which the order
requires inclusion of the clause.
1. Vaccination of Covered Contractor Employees, Except in Limited
Circumstances Where an Employee Is Legally Entitled to an Accommodation
Covered contractors must ensure that all covered contractor
employees are fully vaccinated for COVID-19, unless the employee is
legally entitled to an accommodation. Covered contractor employees must
be fully vaccinated no later than January 18, 2022. After that date,
all covered contractor employees must be fully vaccinated by the first
day of the period of performance on a newly awarded covered contract,
and by the first day of the period of performance on an exercised
option or extended or renewed contract when the clause has been
incorporated into the covered contract.
A covered contractor may be required to provide an accommodation to
covered contractor employees who communicate to the covered contractor
that they are not vaccinated against COVID-19 because of a disability
(which would include medical conditions) or because of a sincerely held
religious belief, practice, or observance. A covered contractor should
review and consider what, if any, accommodation it must offer. Requests
for ``medical accommodation'' or ``medical exceptions'' should be
treated as requests for a disability accommodation.
Should a Federal agency have an urgent, mission-critical need for a
covered contractor to have covered contractor employees begin work on a
covered contract or at a covered workplace before becoming fully
vaccinated, the agency head may approve an exception for the covered
contractor--in the case of such limited exceptions, the covered
contractor must ensure these covered contractor employees are fully
vaccinated within 60 days of beginning work on a covered contract or at
a covered workplace. The covered contractor must further ensure that
such employees comply with masking and physical distancing requirements
for not fully vaccinated individuals in covered workplaces prior to
being fully vaccinated.
The covered contractor must review its covered employees'
documentation to prove vaccination status. Covered contractors must
require covered contractor employees to show or provide their employer
with one of the following documents: A copy of the record of
immunization from a health care provider or pharmacy, a copy of the
COVID-19 Vaccination Record Card (CDC Form MLS-319813_r, published on
September 3, 2020), a copy of medical records documenting the
vaccination, a copy of immunization records from a public health or
State immunization information system, or a copy of any other official
documentation verifying vaccination with information on the vaccine
name, date(s) of administration, and the name of health care
professional or clinic site administering vaccine. Covered contractors
may allow covered contractor employees to show or provide to their
employer a digital copy of such records, including, for example, a
digital photograph, scanned image, or PDF of such a record.
The covered contractor shall ensure compliance with the
requirements in this Guidance related to the showing or provision of
proper vaccination documentation.
Covered contractors are strongly encouraged to incorporate similar
vaccination requirements into their non-covered contracts and
agreements with non-covered contractors whose employees perform work at
covered contractor workplaces but who do not work on or in connection
with a Federal contract, such as those contracts and agreements related
to the provision of food services, onsite security, or groundskeeping
services at covered contractor workplaces.
2. Requirements Related To Masking and Physical Distancing While in
Covered Contractor Workplaces
Covered contractors must ensure that all individuals, including
covered contractor employees and visitors, comply with published CDC
guidance for masking and physical distancing at a covered contractor
workplace, as discussed further in this Guidance.
In addition to the guidance set forth below, CDC's guidance for
mask wearing and physical distancing in specific settings, including
healthcare, transportation, correctional and detention facilities, and
schools, must be followed, as applicable.
In areas of high or substantial community transmission, fully
vaccinated people must wear a mask in indoor settings, except for
limited exceptions discussed in this Guidance. In areas of low or
moderate community transmission, fully vaccinated people do not need to
wear a mask. Fully vaccinated individuals do not need to physically
distance regardless of the level of transmission in the area.
Individuals who are not fully vaccinated must wear a mask indoors
and in certain outdoor settings (see below) regardless of the level of
community transmission in the area. To the extent practicable,
individuals who are not fully vaccinated should maintain a distance of
at least six feet from others at all times, including in offices,
conference rooms, and all other communal and work spaces.
Covered contractors must require individuals in covered contractor
workplaces who are required to wear a mask to:
Wear appropriate masks consistently and correctly (over
mouth and nose).
Wear appropriate masks in any common areas or shared
workspaces (including open floorplan office space, cubicle embankments,
and conference rooms).
For individuals who are not fully vaccinated, wear a mask
in crowded outdoor settings or during outdoor activities that involve
sustained close contact with other people who are not fully vaccinated,
consistent with CDC guidance.
A covered contractor may be required to provide an accommodation to
covered contractor employees who communicate to the covered contractor
that they cannot wear a mask because of a disability (which would
include medical conditions) or because of a sincerely held religious
belief, practice, or observance. A covered contractor should review and
consider what, if any, accommodation it must offer.
Covered contractors may provide for exceptions to mask wearing and/
or physical distancing requirements consistent with CDC guidelines, for
example, when an individual is alone in an office with floor to ceiling
walls and a closed door, or for a limited time when eating or drinking
and maintaining appropriate distancing. Covered contractors may also
provide
[[Page 63421]]
exceptions for covered contractor employees engaging in activities in
which a mask may get wet; high intensity activities where covered
contractor employees are unable to wear a mask because of difficulty
breathing; or activities for which wearing a mask would create a risk
to workplace health, safety, or job duty as determined by a workplace
risk assessment.\6\ Any such exceptions must be approved in writing by
a duly authorized representative of the covered contractor to ensure
compliance with this Guidance at covered contractor workplaces, as
discussed further below.
---------------------------------------------------------------------------
\6\ OSHA, Recommended Practices for Safety and Health Programs,
https://www.osha.gov/safety-management.
---------------------------------------------------------------------------
Masked individuals may be asked to lower their masks briefly for
identification purposes in compliance with safety and security
requirements.
Covered contractors must check the CDC COVID-19 Data Tracker County
View website for community transmission information in all areas where
they have a covered contractor workplace at least weekly to determine
proper workplace safety protocols.\7\ When the level of community
transmission in the area of a covered contractor workplace increases
from low or moderate to substantial or high, contractors and
subcontractors should put in place more protective workplace safety
protocols consistent with published guidelines. However, when the level
of community transmission in the area of a covered contractor workplace
is reduced from high or substantial to moderate or low, the level of
community transmission must remain at that lower level for at least two
consecutive weeks before the covered contractor utilizes those
protocols recommended for areas of moderate or low community
transmission.
---------------------------------------------------------------------------
\7\ CDC, COVID-19 Integrated County View, https://covid.cdc.gov/covid-data-tracker/#county-view.
---------------------------------------------------------------------------
3. Designation by Covered Contractors of a Person or Persons To
Coordinate COVID-19 Workplace Safety Efforts at Covered Contractor
Workplaces
Covered contractors shall designate a person or persons to
coordinate implementation of and compliance with this Guidance and the
workplace safety protocols detailed herein at covered contractor
workplaces. The designated person or persons may be the same
individual(s) responsible for implementing any additional COVID-19
workplace safety protocols required by local, State, or Federal law,
and their responsibilities to coordinate COVID-19 workplace safety
protocols may comprise some or all of their regular duties.
The designated individual (or individuals) must ensure that
information on required COVID-19 workplace safety protocols is provided
to covered contractor employees and all other individuals likely to be
present at covered contractor workplaces, including by communicating
the required workplace safety protocols and related policies by email,
websites, memoranda, flyers, or other means and posting signage at
covered contractor workplaces that sets forth the requirements and
workplace safety protocols in this Guidance in a readily understandable
manner. This includes communicating the COVID-19 workplace safety
protocols and requirements related to masking and physical distancing
to visitors and all other individuals present at covered contractor
workplaces. The designated individual (or individuals) must also ensure
that covered contractor employees comply with the requirements in this
Guidance related to the showing or provision of proper vaccination
documentation.
Frequently Asked Questions
Frequently Asked Questions regarding this Guidance can be found
here: https://www.saferfederalworkforce.gov/faq/contractors/.
All Task Force Guidance, FAQs, and additional information for
Federal contractors and subcontractors can be found here: https://www.saferfederalworkforce.gov/contractors/.
Part II. Economy-and-Efficiency Analysis
The following analysis outlines the ways in which the Guidance set
forth in Part I will promote economy and efficiency in Federal
procurement.
The Guidance requires vaccination of covered contractor employees,
except in limited circumstances where an employee is legally entitled
to an accommodation. It imposes requirements related to masking and
physical distancing in covered contractor workplaces. And it requires
covered contractors to designate a person or persons to coordinate
COVID-19 workplace safety efforts at covered contractor workplaces.
The Guidance is issued pursuant to Executive Order 14042, which the
President promulgated, in part, under the Federal Property and
Administrative Services Act (FPASA). The FPASA, 40 U.S.C. 101 et seq.
provides that the President ``may prescribe policies and directives
that the President considers necessary to carry out'' the Act, which
includes a purpose of ``provid[ing] the Federal Government with an
economical and efficient system for . . . [p]rocuring and supplying
property and nonpersonal services.'' 40 U.S.C. 101(1), 121(a).
This analysis of the economic impact of the Guidance is based on
OMB's subject matter expertise and OMB's review and analysis of the
academic literature on interventions to prevent the spread of COVID-19.
As explained below, the overall effect of enacting these protocols
for Federal contractors and subcontractors will be to decrease the
spread of COVID-19, which will in turn decrease worker absence, save
labor costs on net, and thereby improve efficiency in Federal
contracting. Indeed, numerous private companies have undertaken vaccine
mandates that were announced or take effect before the Federal
Government's mandate on Federal contractors takes effect and private
companies have also imposed masking and physical distancing
requirements at their workplaces. Just as these private businesses have
concluded that vaccination, masking, and physical distancing
requirements will make their operations more efficient and competitive
in the market, we have concluded that the Guidance will realize economy
and efficiency in Federal contracting.
A. COVID-19 Infection Imposes Significant Costs on Contractors and the
Federal Government
The primary goal of the safety protocols is to reduce the spread of
COVID-19 among contractor employees. COVID-19 is a highly communicable
disease that tends to spread between people who are indoors, sharing
space, and in close quarters--conditions common in typical
workplaces.\8\ There is also evidence that COVID-19 can be spread by
asymptomatic individuals. One study estimated that more than half of
transmissions come from individuals who do not have symptoms (Johansson
et al., 2021). Individuals who do not have symptoms are likely to
continue to report to work and therefore may spread the disease to
their coworkers. As such, safety protocols applied even in the absence
of observable illness among employees can meaningfully reduce the
spread of COVID-19. Moreover, because employees working at a single
workplace will regularly come into contact, safety protocols applied to
all
[[Page 63422]]
employees in a workplace can meaningfully reduce the spread of COVID-
19.
---------------------------------------------------------------------------
\8\ See U.S. Environmental Protection Agency, Indoor Air and
Coronavirus (COVID-19), https://www.epa.gov/coronavirus/indoor-air-and-coronavirus-covid-19.
---------------------------------------------------------------------------
The CDC recommends that individuals remain isolated for ten days
after symptom onset, which would mean workers who catch the virus can
miss up to eight days of work.\9\ Furthermore, those individuals could
infect other workers, who would also miss eight days of work.
Additional exposed workers would likely need to quarantine and would
also miss work.
---------------------------------------------------------------------------
\9\ See Centers for Disease Control and Prevention,
Recommendations for Ending Isolation (last updated Sept. 14, 2021),
https://www.cdc.gov/coronavirus/2019-ncov/hcp/duration-isolation.html#anchor_1631308518116.
---------------------------------------------------------------------------
Workers unable to work generate substantial costs on employers. An
imperfect proxy for the cost to an employer of a foregone hour of work
is the worker's hourly pay. We calculate the average hourly wage for a
Federal contractor to be approximately $31.51, making the average pay
for eight days $2,016.\10\ Wages are higher in Washington, DC, Maryland
and Virginia, where many contractors are located, ranging from $33.36
in Virginia to $42.83 in Washington, DC, making the average pay for
eight days in those areas $2,135 and $2,741, respectively. Such costs
are substantial and, if borne by contractors, such costs would be
expected to be passed on to the Federal Government, either in direct
cost or lower quality, including delays.
---------------------------------------------------------------------------
\10\ This calculation uses the distribution of NAICS codes in
the contractor population and average salary of those NAICS codes
from the Occupational Employment and Wage Statistics program at the
Bureau of Labor Statistics, https://www.bls.gov/oes/.
---------------------------------------------------------------------------
Fortunately, vaccines, masks, and physical distancing have all been
proven to reduce the prevalence of COVID-19 infection, and vaccines
have been shown to greatly reduce the severity of breakthrough
infections. And vaccines, masking, and physical distancing are all low-
cost interventions.
B. COVID-19 Vaccination Reduces Net Costs
Requiring any workers who have not yet done so to receive a COVID-
19 vaccine would generate meaningful efficiency gains for Federal
contractors. COVID-19 vaccines provide strong and persistent protection
against infection, illness, and hospitalization (see Tenforde, et al.,
2021 and references). Reducing the number of infected people
mechanically reduces transmission, and some preliminary evidence also
indicates that vaccines also reduce transmission by people who contract
``breakthrough'' infections (Ke, et al., 2021). The vaccine requirement
in the Guidance buttresses other workplace-specific safety protocols
and provides protection against infection outside of the workplace,
increasing the likelihood that the full set of protocols will prevent
infection and illness and preserve the productivity of people working
on or in connection with Federal contracts.\11\
---------------------------------------------------------------------------
\11\ Note that the other safety protocols discussed above will
still be appropriate even after the vaccine requirement is
implemented, e.g., to protect against breakthrough infections and
emerging variants of the virus, or for the benefit of workers who
may be unable to receive a vaccine for medical or religious reasons,
until such time as public health conditions improve and CDC guidance
related to masking and physical distancing changes.
---------------------------------------------------------------------------
Because vaccines are widely available for free, the cost of
implementing a vaccine mandate is largely limited to administrative
costs associated with distributing information about the mandate and
tracking employees' vaccination status. Such costs are likely to be
small.\12\ Other costs of vaccination include employees quitting and
using sick time when experiencing side effects from vaccination.
However, based on experiences shared by private companies detailed
below, we expect few employees to quit because of the vaccine mandate,
and side effects lead to significantly less sick leave than COVID-19
infection. And unlike COVID-19 infection, side effects are not
contagious to other employees.
---------------------------------------------------------------------------
\12\ For example, the Occupational Safety and Health
Administration estimated that providing information would take ten
minutes per firm (84 FR 61476 cl. 3) and that tracking employees'
vaccination status would take five minutes per employee (id. 84 FR
61488 cl. 2).
---------------------------------------------------------------------------
Consistent with the view that COVID-19 vaccines promote economy and
efficiency, numerous private companies have undertaken vaccine mandates
that were announced or take effect before the Federal Government's
mandate on Federal contractors takes effect. Led originally by
companies like United Airlines and Tyson Foods, a wide and growing
swath of private companies have determined that vaccine mandates are
net beneficial to their companies.\13\
---------------------------------------------------------------------------
\13\ The Major Companies Requiring Workers to Get COVID
Vaccines, Fortune (Aug. 23, 2021), https://fortune.com/2021/08/23/companies-requiring-vaccines-workers-vaccination-mandatory/. See
greater discussion on page 12 of the White House Vaccination
Requirements Report (Oct. 2021), https://www.whitehouse.gov/wp-content/uploads/2021/10/Vaccination-Requirements-Report.pdf.
---------------------------------------------------------------------------
While anecdotal reports suggest that vaccine mandates may lead some
workers to quit their jobs rather than comply, which could create some
cost associated with replacing them, we know of no systematic evidence
that this has been a widespread phenomenon, or that it would be likely
to occur among employees of Federal contractors. In fact, the
experience of private companies is to the contrary. For example, United
Airlines reported in October 2021 that 99.7 percent of the airline's
workforce complied with the vaccination requirements, Tyson Foods
reported more than 96 percent of its workforce is now vaccinated, and
healthcare providers such as California's Kaiser Permanente reported
placing only two percent of employees on administrative leave for
failing to comply with vaccine requirements.\14\ And finally, even if
some non-negligible number of workers were to quit rather than comply
with a vaccine mandate, the cost of replacing those workers would be a
one-time cost, while the benefits of increased vaccination (including
among replacement workers, who would be vaccinated) would be long-
lasting.
---------------------------------------------------------------------------
\14\ COVID Vaccine Some 5 Percent of Unvaccinated Adults Have
Quit Their Jobs Over a Mandate Survey Shows CNBC (Oct. 28, 2021),
https://www.cnbc.com/2021/10/28/covid-vaccine-some-5percent-of-unvaccinated-adults-have-quit-their-jobs-over-a-mandate-survey-shows.html; How Tyson Foods Got 60,500 Workers to Get the
Coronavirus Vaccine Quickly, N.Y. Times (Nov. 4, 2021), https://www.nytimes.com/2021/11/04/business/tyson-vaccine-mandate.html.
Vaccine mandates stoked fears of labor shortages. But hospitals say
they're working, Washington Post (Oct. 16, 2021), https://www.washingtonpost.com/health/2021/10/16/hospital-covid-vaccine-mandate/.
---------------------------------------------------------------------------
C. Masking and Physical Distancing Reduces Net Costs
COVID-19 is generally thought to be spread by respiratory particles
and aerosols.\15\ Masking and physical distancing have proven effective
in reducing the spread of COVID-19. One study found that communities
with the greatest physical distancing had a 31 percent lower risk of
COVID-19 than communities with poor physical distancing, and that
communities where individuals reported always using face masks outside
of the home, even with poor physical distancing, had 62 percent reduced
risk of COVID-19 compared to communities where face masks were never
worn (Kwon et al., 2020). Another study found that full population
masking reduces transmission of the virus by 25.8 percent (Leech et
al., 2021). Similarly, a study of masking and ventilation improvements
in Georgia schools found that COVID-19 incidence was 37 percent lower
in schools where masks were required and 39 percent lower in schools
with improved ventilation
[[Page 63423]]
(Gettings et al., 2021). This research shows that masking, physical
distancing, and improved ventilation will all reduce the likelihood
that COVID-19 spreads among the contractor workforce. These
preventative measures will decrease worker absence and allow contract
workers to continue their work without the need to take time off to
recover from COVID-19. Thus, mask wearing and physical distancing are
likely to reduce the spread of COVID-19 within contractor workplaces,
reducing worker absence and maintaining productivity.
---------------------------------------------------------------------------
\15\ CDC, Prevent Getting Sick: How COVID Spreads (last updated
July 14, 2021), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html.
---------------------------------------------------------------------------
The costs of masking and physical distancing are minimal. For
example, contractors may have to pay for masks for their employees.
Masks can cost as little as $0.13 per mask and would need to be
provided only to employees who do not already have their own masks.\16\
Physical distancing can often be done without additional costs.
Numerous private companies like Walmart require all employees to wear
masks and physically distance, embodying a judgment that these
mitigation measures promote economy and efficiency in the
workplace.\17\
---------------------------------------------------------------------------
\16\ Mask costs were taken from a search of Amazon and would
likely be lower for a contractor who would be able to order in bulk.
\17\ The Major Companies Requiring Workers to Get COVID
Vaccines, Fortune (Aug. 23, 2021), https://fortune.com/2021/08/23/companies-requiring-vaccines-workers-vaccination-mandatory/.
---------------------------------------------------------------------------
D. Conclusion
For these reasons, it is OMB's expert opinion that the Guidance
will promote economy and efficiency in Federal Government procurement.
All plans for economic recovery and growth are predicated on the need
to prevent additional spread of the COVID-19 virus and facilitate
vaccinations, and no employer, whether public or private, can expect to
see increased productivity or economic efficiency without a healthy
workforce. The safety protocols that are set forth by the Safer Federal
Workforce Task Force are meant to ensure that COVID-19 does not easily
spread within the workplace, so that Federal contractor employees can
continue to be productive.
E. References
Gettings, Jenna, Michaila Czarnik, Elana Morris et al. 2021. ``Mask
Use and Ventilation Improvements to Reduce COVID-19 Incidence in
Elementary Schools--Georgia, November 16-December 11, 2020.''
Morbidity and Mortality Weekly Report 70(21): 779-784.
Johansson, Michael A., Talia M. Quandelacy, Sarah Kada et al. 2021.
``SARS-CoV-2 Transmission from People Without COVID-19 Symptoms.''
JAMA Network Open 4(1): e2035057.
Ke, Ruian, Pamela Martinez, Rebecca Lee Smith, et al. 2021.
``Longitudinal analysis of SARS-CoV-2 vaccine breakthrough
infections reveal limited infectious virus shedding and restricted
tissue distribution.'' Preprint, https://www.medrxiv.org/content/10.1101/2021.08.30.21262701v1.
Kwon, Sohee, Amit D. Joshi, Chun-Han Lo et al. 2021. ``Association
of social distancing and face mask use with risk of COVID-19.''
Nature Communications 12.
Leech, Gavin, Charlie Rogers-Smith, Jonas B. Sandbrink et al. 2021.
``Mass mask-wearing notably reduces COVID-19 transmission.''
medRxiv.
Tenforde, Mark W., Wesley H. Self, Eric A. Naioti, et al. 2021.
``Sustained Effectiveness of Pfizer-BioNTech and Moderna Vaccines
Against COVID-19 Associated Hospitalizations Among Adults--United
States, March-July 2021.'' Morbidity and Mortality Weekly Report
70(34): 1156-1162.
Part III. Procedural Requirements
A. Public Contract Requirements Under Public Law 111-350
I am making my determination pursuant to a Presidential delegation
under 3 U.S.C. 301. That determination is therefore not subject to the
procedural requirements of Public Law 111-350, codified at 41 U.S.C.
1707. See NRDC, Inc. v. U.S. Dep't of State, 658 F. Supp. 2d 105, 109 &
n.5, 111 (D.D.C. 2009) (when an agency acts pursuant to 3 U.S.C. 301,
the agency ``stands in the President's shoes'' and that action is ``not
reviewable under the APA''); Detroit Int'l Bridge Co. v. Canada, 189 F.
Supp. 3d 85, 100 (D.D.C. 2016) (``Several cases have concluded that an
agency's action on behalf of the President, involving discretionary
authority committed to the President, is `presidential' and
unreviewable under the APA.''). To the extent that 41 U.S.C. 1707 is
applicable to my determination set forth in this document, there are
urgent and compelling circumstances that justify departing from the
notice-and-comment and delayed-effective-date requirements in 41 U.S.C.
1707.
The notice-and-comment and delayed-effective-date requirements of
subsections (a) and (b) of 41 U.S.C. 1707 ``may be waived by the
officer authorized to issue a procurement policy, regulation,
procedure, or form if urgent and compelling circumstances make
compliance with the requirements impracticable.'' 41 U.S.C. 1707(d).
This statutory exception is implemented in FAR section 1.501-3, which
provides that ``[a]dvance comments need not be solicited when urgent
and compelling circumstances make solicitation impracticable prior to
the effective date of the coverage, such as when a new statute must be
implemented in a relative short period of time.''
Urgent and compelling circumstances justify waiving the notice-and-
comment requirement for this notice. This is a once in a generation
pandemic, which has already resulted in more than 46,405,253 cases of
COVID-19, hospitalized more than 3,283,045 Americans, and taken more
than 752,196 American lives. The pandemic continues to present an
imminent threat to the health and safety of the American people,
including due to the emergence of the B.1.617.2 (Delta) variant, which
is a variant of concern that spreads more easily than previously
discovered variants of SARS-CoV-2. This threat reaches all Americans,
including those working for Federal contractors and subcontractors. The
Guidance directly addresses this imminent threat by requiring
vaccination. The CDC has determined that the best way to slow the
spread of COVID-19, including preventing infection by the Delta
variant, is for individuals to get vaccinated. According to the CDC,
vaccinated individuals are 5 times less likely to be infected and 10
times less likely to experience hospitalization or death due to COVID-
19 than unvaccinated individuals. The Guidance thus promotes the most
important, urgent public health measure to slow the spread of COVID-19
among Federal contractors and subcontractors--which is critical to
avoiding worker absence and unnecessary labor costs that could hinder
the efficiency of federal contracting.
The minimum delay required by subsections (a) and (b) of 41 U.S.C.
1707 is also incompatible with a fundamental purpose of issuing this
determination. The Guidance set forth in Part I changes the vaccination
deadline for Federal contractors from December 8, 2021, to January 18,
2022. If the determination implementing this change were required to
comply with subsections (a) and (b) of 41 U.S.C. 1707 (requiring 30
days for comment, and another 30 days to become effective), the
earliest possible effective date for this determination would be
January 9, 2022. But waiting until January for this determination to
become effective would prevent the change in deadlines from having
practical effect, as Federal contractors and subcontractors would still
be legally obligated to meet the December 8, 2021, vaccination deadline
until this determination became effective. That alone establishes
urgent and compelling
[[Page 63424]]
circumstances to warrant making this determination immediately
effective.
Additionally, even if there were no prior deadline that contractors
and subcontractors were obligated to meet, urgent and compelling
circumstances would still exist because the broader economy-and-
efficiency purpose of this determination would be severely undermined
by the minimum delay required under subsections (a) and (b) of 41
U.S.C. 1707. As an initial matter, such a delay would interfere with an
important purpose of the Task Force Guidance--aligning the vaccination
deadline for Federal contractors with the vaccination deadline for
private companies under recent regulatory actions. In particular, the
Occupational Safety and Health Administration (OSHA) issued an
Emergency Temporary Standard (ETS) requiring employers with 100 or more
employees to ensure their workers are fully vaccinated or tested for
COVID-19 on at least a weekly basis, and the Centers for Medicare &
Medicaid Services (CMS) issued a rule requiring health care workers at
facilities participating in Medicare and Medicaid to be fully
vaccinated. 86 FR 61402; 86 FR 61555. Those rules set a deadline of
January 4, 2022, for employees to receive their final COVID-19
vaccination dose--i.e., January 18, 2022, for a fully vaccinated
covered workforce. The Task Force's decision to set the same deadline
for Federal contractors and subcontractors will make it easier for
private employers to administer successful vaccination policies across
their workforce and will allow Federal contractors and subcontractors
to implement their requirements on the same timeline as other employers
in their industries.\18\ For example, a large employer covered by the
ETS may have some but not all of their workplaces covered by the
vaccination requirement for Federal contractors and subcontractors. For
such an employer, that would mean some workplaces are governed by the
ETS and some by the Task Force Guidance. Or, an employer may have some
workers covered by the CMS rule, and other workers covered by the
vaccination requirement for Federal contractors and subcontractors. For
employers in these circumstances, having the same deadline across all
requirements will promote consistency and administrability of public
health standards, and eliminate potential confusion and frustration
that disparate deadlines could produce. It could also avoid needless
costs in having multiple systems of records and internal accountability
established for different deadlines. Ensuring that private employers do
not need to meet different compliance dates across different Federal
vaccination policies is thus important to the success of their
vaccination programs and to promoting economy and efficiency in Federal
procurement.
---------------------------------------------------------------------------
\18\ Unlike the vaccination deadline for covered employees of
Federal contractors, the vaccination deadline for Federal employees
under Executive Order 14043 does not require alignment with private
companies, because there is no subset of private companies also
subject to Executive Order 14043. Thus, the exigencies of combatting
the global pandemic require maintaining the current vaccination
deadline for Federal employees of November 22, 2021.
---------------------------------------------------------------------------
Moreover, in order for such alignment to be effective, employers
require regulatory certainty in the near-term. An immediately effective
notice gives contractors and subcontractors a clear understanding not
only of their responsibilities under Federal law but also the deadline
for complying with those responsibilities. By contrast, absent an
immediately effective determination of that deadline, such employers
would have to wait until comments are received and a determination is
finalized to know with certainty the deadline for ensuring that their
covered employees are fully vaccinated. That would cause much of the
administrability problems and frustration that alignment is intended to
avoid, undermining the critical efforts to curb the spread of COVID-19
among Federal contractors and subcontractors and preventing alignment
of the relevant deadlines.
Compliance with the procedural requirements of 41 U.S.C. 1707(a)
and 1707(b) would fundamentally undermine the effort to provide private
companies with aligned deadlines and regulatory certainty, as outlined
above. As noted above, under those requirements the earliest effective
date for this determination would be January 9, 2022. Simply put, that
is far too late to provide regulatory certainty for Federal
contractors, as that is past the date that covered employees of covered
Federal contractors must receive their final COVID-19 vaccination dose
(January 4, 2022), and it is less than ten days before the deadline for
covered contractor employees to be fully vaccinated (January 18, 2022).
Thus, compliance with the procedural requirements of 41 U.S.C. 1707(a)
and 1707(b) would undermine the success of the Federal Government's
vaccination efforts and economy and efficiency in Federal procurement.
Thus, to the extent that it is found that my determination is
subject to the procedural requirements in 41 U.S.C. 1707, I have
concluded that urgent and compelling circumstances exist under section
1707(d). The requirements of this notice are accordingly effective
immediately upon filing with the Federal Register. Additionally, to the
extent that it is found that my determination is subject to the
procedural requirements in 41 U.S.C. 1707, this determination is
temporary, consistent with section 1707(e). And regardless of whether
this determination is subject to the procedural requirements in 41
U.S.C. 1707, I am soliciting comment on all subjects of this
determination, which would also be consistent with sections 1707(c) and
(e), if those provisions applied.
B. Administrative Procedure Act
My determination is not subject to the procedural rulemaking
requirements of the Administrative Procedure Act (APA).
As noted above, this determination is pursuant to a delegation from
the President under 3 U.S.C. 301. When any agency acts pursuant to such
a delegation, the agency ``stands in the President's shoes'' and its
actions ``cannot be subject to judicial review under the APA.'' NRDC v.
State, 658 F. Supp. 2d at 109 & n.5, 111.
Even if the APA were applicable, the notice-and-comment
requirements of 5 U.S.C. 553 exempt ``a matter relating to agency
management or personnel or to public property, loans, grants, benefits,
or contracts.'' 5 U.S.C. 553(a)(2). This determination relates to
procurement and contractors--i.e., ``contracts'' under section
553(a)(2)--and is thus exempt from the APA's notice-and-comment
requirements.
Moreover, even if the notice-and-comment requirements of 5 U.S.C.
553 were applicable, the good-cause exception is satisfied here. 5
U.S.C. 553(b)(3)(B) waives notice-and-comment requirements if ``the
agency for good cause finds'' that compliance would be ``impracticable,
unnecessary, or contrary to the public interest.'' Notice and comment
is impracticable in situations where delay would result in harm. See,
e.g., Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012).
Applicable procedures are ``[i]mpracticable'' if ``the due and required
execution of the agency functions would be unavoidably prevented by its
undertaking public rule-making proceedings'' or negotiated rulemaking.
N.J., Dep't of Envtl. Prot. v. EPA, 626 F.2d 1038, 1046 (D.C. Cir.
1980) (quoting S. Doc. No. 248, at 200 (1946)); see also United States
v. Cotton, 760 F. Supp. 2d 116, 129 (D.D.C. 2011). Such ``good cause''
would also exempt an agency from the delayed effective
[[Page 63425]]
date under 5 U.S.C. 553(d). For the reasons explained above, notice-
and-comment rulemaking and a delayed effective date would be
impracticable, because the resulting delay in the effective date would
not provide Federal contractors and subcontractors sufficient time to
ensure compliance in time for the January 18, 2022, vaccination
deadline.
* * * * *
Shalanda Young,
Acting Director.
[FR Doc. 2021-24949 Filed 11-10-21; 4:15 pm]
BILLING CODE 3110-01-P