We do not believe that Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors) will apply to banks unless they provide services directly to the federal government or federal employees or operate on federal property (such as providing financial services in a federal building or on a military base).

Executive Order 14042 generally requires federal contractors and subcontractors operating under a “federal contract” to follow the COVID-19 safeguards published by the Safer Federal Workforce Task Force, which include COVID-19 vaccination requirements for “covered contractor employees.” The order’s definition of “federal contracts” includes only four categories of contracts: (1) “procurement contract[s] . . .. for services, construction, or a leasehold interest in real property,” (2) service contracts covered by the Service Contract Act, (3) contracts for concessions, and (4) contracts in connection with federal property or lands and related to offering services for federal employees.

Based on the types of contracts listed in Executive Order 14042, we do not believe it was intended to apply to banks (for example, due to banks’ deposit insurance relationship with the federal government, which has been a basis for imposing affirmative action requirements for federal contractors onto banks, but only in that context). However, if a bank enters into a contractual agreement with the federal government that fits into one of the four categories listed above, we believe the bank would be subject to Executive Order 14042 and its vaccination requirements. 

For resources related to our guidance, please see:

• Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (September 14, 2021), Sec. 2(a) (“Executive departments and agencies . . .  shall, to the extent permitted by law, ensure that contracts and contract-like instruments (as described in section 5(a) of this order) include a 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 Safer Federal Workforce Task Force (Task Force Guidance or Guidance), provided that the Director of the Office of Management and Budget (Director) approves the Task Force Guidance and determines that the Guidance, if adhered to by contractors or subcontractors, will promote economy and efficiency in Federal contracting. This clause shall apply to any workplace locations (as specified by the Task Force Guidance) in which an individual is working on or in connection with a Federal Government contract or contract-like instrument (as described in section 5(a) of this order).”)

• Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (September 24, 2021), page 1 (“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; . . .”)

• Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (September 14, 2021) (Sec. 5(a)) (“This order shall apply to any new contract; new contract-like instrument; new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument, if:

(i) it is a procurement contract or contract-like instrument for services, construction, or a leasehold interest in real property;

(ii) it is a contract or contract-like instrument for services covered by the Service Contract Act, 41 U.S.C. 6701 et seq.;

(iii) it is a contract or contract-like instrument for concessions, including any concessions contract excluded by Department of Labor regulations at 29 CFR 4.133(b); or

(iv) it is a contract or contract-like instrument entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public . . .”)

• Service Contract Act, 41 USC 6702(a) (“Except as provided in subsection (b), this chapter applies to any contract or bid specification for a contract, whether negotiated or advertised, that

(1) is made by the Federal Government or the District of Columbia;

(2) involves an amount exceeding $2,500; and

(3) has as its principal purpose the furnishing of services in the United States through the use of service employees.”)

• Department of Labor Regulations, 29 CFR 10.2 (“Concessions contract or contract for concessions means a contract under which the Federal Government grants a right to use Federal property, including land or facilities, for furnishing services. The term concessions contract includes but is not limited to a contract the principal purpose of which is to furnish food, lodging, automobile fuel, souvenirs, newspaper stands, and/or recreational equipment, regardless of whether the services are of direct benefit to the Government, its personnel, or the general public.”)

• U.S. Department of Labor, Office of Federal Contract Compliance Programs – Jurisdiction FAQs, Question 13 (“Is a financial institution covered by the federal Deposit Insurance Corporation (FDIC) or the National Credit Union Association (NCUA) with deposit insurance subject required to comply with Affirmative Action Program (AAP) obligations under Executive Order 11246, VEVRAA, and Section 503? Yes. Financial institutions with federal share and deposit insurance are considered to be government contractors within the meaning of the regulations implementing Executive Order 11246, as amended (Executive Order); . . . The implementing regulations for Executive Order at 41 CFR 60-1.3 have consistently defined a government contract as any agreement or agreement modification between any contracting agency and any person for the purchase, sale or use of personal property or nonpersonal services.”)