Both US Forest Service and National Park Service concessioners may be subject to recent Covid-19 guidance issued pursuant to President Biden’s Executive Order On Enduring Adequate COVID Safety Protocols for Federal Contractors issued on September 9, 2021 (EO 14042). The EO stated that certain new concession authorizations shall, to the extent required by law, comply with guidance to be subsequently issued by the Safer Federal Workforce Task Force. The EO also stated that agencies were “strongly encouraged” to ensure that existing concession authorizations abide by the same guidance.
The Task Force guidance was issued on September 24, 2021. The guidance is to be included in any new authorizations issued or amended on or after October 15, 2021 unless the authorization was issued pursuant to a solicitation issued before that date, in which case the authorization is exempted if it is issued prior to November 15, 2021. The guidance requires any covered concession employees to be vaccinated except in limited circumstances. The guidance also stated that it “applies to [] workplace locations that are outdoors.”
NPS has issued some additional guidelines for implementing the guidance, including how to address access to federally controlled buildings for business visitors, which includes onsite concessioner employees. NPS, however, has stated that “[t]his policy does not apply in buildings that are wholly assigned to concessioners and leaseholders. If a concessioner or leaseholder is assigned space (e.g. for retail) in a building that is otherwise managed by the NPS, or if a concessions or leaseholder employee is entering an NPS-controlled facility for business purposes, this policy applies.” Those guidelines suggest that the agency will not be requiring existing concessioners to comply with the guidance in structures which are assigned to those concessioners. In some regions, however, NPS’ statements have suggested that existing concessioners may otherwise be required to comply even though the EO does not mandate it.
October 21, 2021 UPDATE:
NPS has issued new guidance on its website which states as follows:
Effective December 8, the employees of many contractors and other park partners operating under new and existing contract-like instruments (e.g., cooperative agreements, concession contracts, commercial use authorizations, leases, and cooperating association agreements) will be required to be fully vaccinated in accordance with:
- Executive Order 14042 (September 9, 2021);
- Protocols issued by the Safer Federal Workforce Task Force on September 24, 2021 (may be amended going forward); and
- DOI Guidance for Implementing EO 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (October 15, 2021).
The NPS is required to include these conditions in new and modified contracts and will be required to incorporate them into existing vehicles by November 15. We are currently working to make the required changes to FAR contracts and cooperative agreements. The NPS is also working through the legal and practical considerations of applying the policy to other contract-like instrument types, such as volunteer service agreements and the standard cooperating association agreement.
The NPS will not collect or verify proof of vaccination for employees of contractors or operational partners under contracts or contract-like instruments. Employers will be responsible for verifying the vaccination status of their own employees and establishing their own protocols for religious or medical exemptions.
The Forest Service has not yet publicly distributed additional guidelines for implementing this policy. Notably, while the EO “strongly encourages” agencies to take steps to have existing permits comply with the new guidance, the Forest Service may not be legally permitted to do so. As to existing permits, the EO states that agencies are “strongly encouraged [] to the extent permitted by law [] to ensure that the safety protocols required under” existing contracts “are consistent with the requirements” of the EO. The Forest Service, however, may not have the legal right to unilaterally amend permits either formally or effectively to include clauses such as the one created pursuant to the EO because the EO does not require the Forest Service to amend existing permits. Most Forest Service permits state:
AMENDMENT. This permit may be amended in whole or in part by the Forest Service when at the discretion of the authorized officer such action is deemed necessary or desirable to incorporate new terms that may be required by law, regulation, directive, the applicable land management plan, or projects and activities implementing the land management plan pursuant to 36 CFR Part 218.
The term “directive” typically means Forest Service directives set out in the Forest Service Manual or Handbook. The term typically does not include directives set out in Executive Orders. In addition, while Forest Service permits require permittees to abide by future federal laws and regulations, that clause does not include Executive Orders which are not laws or regulations.
Because this guidance is new and still being developed, you should contact your local Park or Forest if you have any questions as to its applicability.