Construction Bills: Recent Changes to Construction Laws

• Author: By Rowan T. Mason and Brian R. Zimmerman
• Pages: 40-47

THE CONSTRUCTION LAWYER40 Volume 41, Issue 4, 2022

CONSTRUCTION BILLS: RECENT CHANGES

TO CONSTRUCTION LAWS

continued on page 42

Federal Contract

Vaccine Mandate Begins

Implementation

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

(FPASA).

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,

construction.

The Safer Federal Workforce Task Force issued its

initial Guidance on September 24, 2021,

2

which in prin-

cipal part for all “covered contracts” requires:

1.

COVID-19 vaccination of covered contrac-

tor employees, except in limited circumstances

where an employee is legally entitled to an

accommodation;

2.

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

3.

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,”

3

which

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.”

5

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.

6

“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.