Determination of the Acting OMB Director Regarding the Revised Safer Federal Workforce Task Force Guidance for Federal Contractors and the Revised Economy & Efficiency Analysis

Citation86 FR 63418
Record Number2021-24949
Published date16 November 2021
SectionNotices
CourtManagement And Budget Office
Federal Register, Volume 86 Issue 218 (Tuesday, November 16, 2021)
[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
                

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT