Determination of the Acting OMB Director Regarding the Revised Safer Federal Workforce Task Force Guidance for Federal Contractors and the Revised Economy & Efficiency Analysis, 63418-63425 [2021-24949]

Agencies

• Management and Budget Office

[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]


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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.

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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\
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    \1\ CDC, COVID-19 Integrated County View, https://covid.cdc.gov/covid-data-tracker/#county-view.
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    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.
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    \2\ CDC, When You've Been Fully Vaccinated (last updated Oct. 
15, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html.
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    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\
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    \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.
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    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\
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    \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.
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    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.
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    \5\ CDC, Types of Masks and Respirators (Sept. 23, 2021), 
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/types-of-masks.html.
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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.
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    \6\ OSHA, Recommended Practices for Safety and Health Programs, 
https://www.osha.gov/safety-management.
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    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.
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    \7\ CDC, COVID-19 Integrated County View, https://covid.cdc.gov/covid-data-tracker/#county-view.
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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.
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    \8\ See U.S. Environmental Protection Agency, Indoor Air and 
Coronavirus (COVID-19), https://www.epa.gov/coronavirus/indoor-air-and-coronavirus-covid-19.
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    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.
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    \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.
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    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.
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    \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/.
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    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\
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    \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.
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    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.
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    \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).
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    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\
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    \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.
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    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.
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    \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/.
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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.
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    \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.
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    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\
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    \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/.
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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.
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    \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.
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    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