Construction Bills: Recent Changes to Construction Laws

AuthorBy Rowan T. Mason and Brian R. Zimmerman
THE CONSTRUCTION LAWYER40 Volume 41, Issue 4, 2022
continued on page 42
Federal Contract
Vaccine Mandate Begins
As the pandemic wears on,
President Biden has mandated
by executive order that fed-
eral contractors comply with
certain health protocols—
including vaccinations and
masking. Specically, on Sep-
tember 9, 2021, President
Biden issued Executive Order
No. 14042, entitled “Ensuring
Adequate COVID Safety Pro-
tocols for Federal Contractors.”
The Executive Order references
authority generally under the
Constitution and law of the
United States, and specically
the Federal Property and Administrative Services Act
Under the terms of the Executive Order, departments
and agencies must ensure that contractors, including
subcontractors of any tier, comply with all guidance
published by the Safer Federal Workforce Task Force
(Guidance). The Order further directs the Federal
Acquisition Regulatory Council to amend the Federal
Acquisition Regulations (FAR) to require inclusion of
the Guidance requirements in all applicable federal pro-
curement solicitations and contracts. As implemented
through FAR 52.223-99,1 the requirements generi-
cally provide that contractors shall comply with the
Guidance as amended during the performance of the
contract. It further requires inclusion of substantive
terms (discussed below) in any subcontracts to be per-
formed within the United States, including, specically,
The Safer Federal Workforce Task Force issued its
initial Guidance on September 24, 2021,
which in prin-
cipal part for all “covered contracts” requires:
COVID-19 vaccination of covered contrac-
tor employees, except in limited circumstances
where an employee is legally entitled to an
compliance by individuals, including covered con
tractor employees and visitors, with the Guidance
related to masking and physical distancing while
in covered contractor workplaces; and
designation by covered contractors of a person or
persons to coordinate COVID-19 workplace safety
efforts at covered contractor workplaces.
Certain employees and workplaces are included in
the requirements.
Covered Contractor Employees. Where a
contractor is a party to a covered contract, “covered
contractor employees” include all “full-time and
part-time employees working on or in connection
with a covered contract at a covered contractor
workplace. This includes employees of covered
contractors who are not themselves working on
or in connection with a covered contract,”
would include, without limitation, employees who
perform duties necessary for the performance of the
covered contract, but who are not directly engaged
in performing the specic work, such as human
resources, billing, and legal review.4
Covered Contractor Workplace. A “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.”
This broadly includes employees who are likely to
come in contact with a covered contractor employee.
Despite the categories of affected worker and work-
places, the Guidance applies more broadly.
Employees. As to employees, unless a covered
contractor can afrmatively determine that none
of its employees will come into contact with a
covered contractor employee during the period of
performance of the covered contract, all employees
at a covered contractor workplace are subject to
the Guidance.
“This would include afrmatively
determining that there will be no interactions
between covered contractor employees and non-
covered contractor employees in those locations
during the period of performance on a covered
contract, including interactions through use of
common areas such as lobbies, security clearance
areas, elevators, stairwells, meeting rooms, kitchens,
dining areas, and parking garages.”7 The Guidance
also applies equally to outdoor workplaces.8
Workplaces. As to workplaces, although a covered
contractor workplace does not include a covered
contractor employee’s residence, employees
working on a covered contract from their own
residence must still comply with the vaccination
requirement, even if the employee never works at
Rowan T. Mason
Brian R. Zimmerman
By Rowan T. Mason and Brian
R. Zimmerman
Published in
The Construction Lawyer
, Volume 41, Number 4. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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