Page 27 - COVID Executive Order Survival Guide Brochure

Additionally, while not controlling on a court, it’s worth at least noting the Government anticipated such challenges, and provided its own view of the outcome of a state/federal showdown over the EO 14042. Here is what the Task Force had to say on the topic:
Q19: Does this clause apply in States or localities that seek to prohibit compliance with any of the workplace safety protocols set forth in this Guidance?
A: Yes. These requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance. Additionally, nothing in this Guidance shall excuse noncompliance with any applicable State law or municipal ordinance establishing more protective workplace safety protocols than those established under this Guidance.
In response to a specific question about federal contractors currently operating in Texas, the Department of Defense released a statement reiterating the position from the Guidance, and confirming that DOD expects federal contractors operating in Texas to comply with the vaccine mandate.
So with all this being said, how are companies handling the currently conflicting state/federal mandates? As you’d expect, they are treating the federal EO as supreme. As reported in the press, two major airlines and several other sizeable businesses recently publicly stated their view that they would adhere to EO 14042 since federal Executive Orders supersede conflicting state laws/orders. Time published an article providing additional examples of corporations taking a similar stance.
We agree that, in the event of a direct showdown, Federal law will win out over state law here. But the conflict still puts companies in an awkward position to say the least, and may create nuanced, challenging compliance scenarios.
I’ve Seen Multiple Orders Relating To COVID-19. What’s The Difference?
If you’re confused by the recent proliferation of federal orders relating to COVID safety, you’re not alone. Here is a quick overview of the recent Executive Orders and the related compliance obligations they create for federal contractors:
• EO 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (Sept. 9, 2021). This EO, which is the primary focus of this Survival Guide, creates the broadest set of compliance obligations for federal contractors. We won’t rehash those obligations here, but most notably, EO 14042 requires that Covered Contractor employees be fully vaccinated by January 18th. The EO also requires Covered Contractors to implement COVID-19 safety protocols (masking and physical distancing) in their covered facilities. The EO does not allow for an “opt-out” option such as testing instead of full vaccination.
•EO 14043, Requiring Coronavirus Disease 2019 Vaccination for Federal Employees (Sept. 9, 2021). This EO, although issued on the same day as EO 14042, does not apply to federal contractors. It applies only to executive agencies and their employees.
• EO 13991, Protecting the Federal Workforce and Requiring Mask-Wearing (Jan. 20, 2021). This EO directs executive departments and agencies to require compliance with CDC guidelines (including masking and physical distancing) by (1) on-duty or on-site federal employees; (2) on-site federal contractors; and (3) all persons in federal buildings or on federal land. This EO also created the Safer Federal Workforce Task Force, the drafter of the Guidance described throughout this Survival Guide.
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EXECUTIVE ORDER 14042 SURVIVAL GUIDE | PAGE 27