Page 9 - COVID Executive Order Survival Guide Brochure

Are The Members Of My Leadership Team “Covered Employees”?
We think the Government would say yes. The EO covers employees of the contracting entity who work on or “in connection with” a covered contract. The rule includes HR, legal, and billing as examples of employees who work “in connection with” a federal contract. Reasoning from these examples, we suspect the Government will argue occupants of a contracting entity’s C-Suite who are responsible for the entirety of a company’s operations are covered by the rule. Contractors that have highlighted the role these individuals play in driving quality performance, contract compliance, and corporate integrity will find it especially hard to argue against this. Indeed, many federal proposals explicitly tout the personal involvement of corporate leaders in the Company’s federal business. To take C-Suite members out of the “in connection with” category, we suspect the Government would look for some sort of process walling them off from federal contract decision-making, which, of course, could make it very hard for them to manage the company’s affairs.
Are Board Members Covered By The Executive Order?
We think it depends. Even though they are paid, most Board members are not employees of the companies they serve. Thus, the EO would not technically cover them since it covers only “covered contractor employees.” That being said, some Board members are employees (often non-voting), and, since they could be viewed as supporting the company as a whole, there is a fair argument they would be deemed “covered employees” under the rule. This is not an unassailable position, however, as the EO is not clear whether company leaders that support the company as a whole work “in connection with” the company’s federal contracts. (We suspect the Government would argue that they do, which is why, in a suspension/ debarment proceeding, the Suspension & Debarment Official wants to hear from corporate leadership and not just from the leader of the company’s federal sales division.)
One final point is worth mentioning here – whether or not you take the view that Board members are covered by the rule or not, there is a good policy argument that you should treat them as though they are. Our Organizational Integrity Group spends a lot of time working with companies to help them align their business decisions with their stated values. In this context, we always focus on Tone At The Top. There is no question that the message from the top in any company sets the tone for the company as a whole, and for the level of compliance by those down the employment chain. The more clearly a message is communicated, through words and actions, the more easily the stated corporate priorities – whether those priorities are driven by ethical ideals, profit-motives, and/or compliance obligations – will be mirrored by company personnel.
Do I Need To Tell My Consultants And Independent Contractors (1099s) To Get Vaccinated?
By its terms, the rule covers only a company’s employees. Consultants and independent contractors (which we will call simply “consultants” here) are not employees and, thus, not “covered employees.” Nonetheless, at least one federal agency we are working with expressly has taken the position that consultants are covered by the Guidance. The position likely is driven by the fact that consultants often are subcontractors, and, as we all know by now, the rule flows down to subcontractors at almost all tiers.
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EXECUTIVE ORDER 14042 SURVIVAL GUIDE | PAGE 9