Biden Administration Issues New Masking Mandate

The Biden Administration has already announced several measures that outline its response to the COVID 19 pandemic.  On January 20, 2021, President Biden issued "Executive Order on Protecting the Federal Workforce and Requiring Mask-Wearing." The Order imposes a number of new requirements intended to halt the spread of the virus, to protect the federal workforce and individuals who interact with the federal workforce, and to ensure the continuity of government services and activities. 

Among other provisions, the Order includes new masking mandates, effective immediately, for on-duty or on-site federal employees, on-site “Federal contractors,” and other individuals in “Federal buildings” and on “Federal lands.”  The Order requires that all covered individuals should wear masks, maintain physical distance, and adhere to other public health measures, as provided in CDC guidelines.  Although the Order explicitly applies to employees of Federal contractors, it does not address application to subcontractors. 

The Order permits agency heads to issue “categorical or case-by-case exceptions” under specific criteria, and encourages agencies to “seek to provide masks to individuals in Federal buildings when needed.”

“Federal employees” and “Federal contractors” are collectively defined to mean “employees (including members of the Armed Forces and the National Guard in federal service) and contractors (including such contractors’ employees) working for the executive branch.”  The Order defines “Federal buildings” to mean “buildings or office space within buildings, own, rented, or leased by the executive branch of which a substantial portion of occupants are Federal employees or Federal contractors.”  Although not explicit, this definition suggests that the obligations of the Order extend to contractors working on-site in federal installations outside the United States.  The Order strongly encourages independent agencies to comply with the requirements imposed on executive branch departments and agencies.

The Order is silent on a number of important issues.  First, there is no clear enforcement mechanism or penalty in the Order, although failure or refusal to comply could result in denial of access to Federal facilities and thereby jeopardize a contractor’s ability to carry out their contract performance obligations.  Additionally, other than the definition of “Federal buildings,” the Order provides no guidance related to situations in which Federal employees work alongside contractors at contractor offices or other sites of employment.  Aside from allowing agencies to make categorical or case-by-case exemptions, the Order does not address how it applies to employees or contractors with medical conditions who are unable or unwilling to wear masks.  Finally, the Order is silent regarding a number of practical issues, including the type of masking that is required, whether the employer is required to provide masks at its expense, and whether employees or contractors can bring their own masks to work.  Clarification regarding these and other definitional issues is likely forthcoming through additional implementing guidance.   

Crowell & Moring will continue to monitor developments in the implementation of the Order.