As a result of an Executive Order issued by President Biden on January 20, 2021, federal contractors should expect new PPE requirements and possible facility access or capacity restrictions due to social distancing guidelines for personnel working at government-owned or government-leased sites. This Executive Order on Protecting the Federal Workforce and Requiring Mask-Wearing requires heads of federal agencies to take immediate action to “require compliance with CDC guidelines with respect to wearing masks, maintaining physical distance, and other public health measures by . . . on-site Federal contractors . . . in Federal buildings or on Federal lands.” The EO also creates the Safer Federal Workforce Task Force, which will be responsible for formulating additional COVID-related public health measures that might further restrict access to federal facilities. To the extent that pandemic-related public health measures further restrict federal contractor employees’ access to facilities and those employees cannot work remotely, contractors may be able to seek reimbursement for employee and subcontractor compensation under Section 3610 of the CARES Act.
The new EO applies to all federal premises. The EO directs agencies to implement COVID-19 mitigation measures for a wide range of federal contract performance locations, including “buildings, or office space within buildings, owned, rented, or leased by the executive branch of which a substantial portion of occupants are Federal employees or Federal contractors.”
The Task Force and agencies may impose additional COVID-related restrictions at federal contract performance locations. The EO delegates implementation of federal COVID-related public health measures at federal facilities to the Task Force and individual federal agencies. The Task Force is responsible for addressing more than a dozen topics likely to affect the federal contracting workforce, including employee telework and commuting options, IT infrastructure needed to support remote work, contact tracing, social distancing, and vaccine distribution. Additionally, the Department of Health and Human Services is tasked with developing a COVID-19 testing plan for the federal workforce.
Enhanced COVID-related restrictions at federal properties could keep some contractor employees away from their assigned workplaces. Contractors whose employees or subcontractors cannot perform their work remotely or at alternative sites may be able to obtain relief so that they can continue to compensate such workers under CARES Act Sec. 3610, which was enacted in March 2020 and recently extended through March 31, 2021. Sec. 3610 provides a mechanism for federal contractors to seek reimbursement for compensation of employees and subcontractor personnel who are unable to perform their contract requirements either remotely or at their designated work locations due to facility closures, limited access, or other restrictions arising from COVID-19 mitigation measures.
The sweeping scope of the EO’s mandates could lead to new restrictions on contractor activities at government work locations through social distancing rules or conditions for entry into federal workspaces, such as entry testing, contact tracing or proof of vaccination. To the extent such measures prevent contractor employees from performing work that cannot be done remotely, contractors may be able to pursue relief under CARES Act Sec. 3610.
WilmerHale stands ready to advise clients on navigating these issues.