Executive Order 14042 Will Not Be Implemented or Enforced—Even After 11th Circuit Decision

On August 31, 2022, the Biden administration updated its Safer Federal Workforce Task Force guidance on the federal contractor COVID-19 vaccine mandate. According to the new guidance, “the Federal Government will take no action to implement or enforce Executive Order 14042. For existing contracts or contract-like instruments (hereinafter ‘contracts’) that contain a clause implementing requirements of Executive Order 14042, the Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency.” The updated guidance follows a recent decision from the Eleventh Circuit Court of Appeals that narrowed the scope of a preliminary injunction that had barred enforcement of the federal contractor vaccine mandate nationwide.

As of August 31, the Safer Federal Workforce Task Force website also includes new guidance in the form of frequently asked questions (FAQs) related to federal contractors and symptom screening, among other topics. For example, the FAQs clarify that agencies will no longer symptom screen individuals, including contractor employees working on-site at an agency workplace; rather, “[s]ymptom screening can be self-conducted and does not need to be verified by agency personnel.” These new FAQs are in line with updated COVID-19 Workplace Safety Protocols issued by the administration on August 17, 2022. In that document—which preceded the decision of the Eleventh Circuit that narrowed the Executive Order (EO) 14042 injunction—federal agencies were instructed to “pause” requiring or requesting employees, potential employees, and on-site contractor employees to provide information about their COVID-19 vaccination status. As a result, contractors are no longer required to use the government-wide Certification of Vaccination form.

Contractors may want to continue to monitor the Safer Federal Workforce Task Force website for additional guidance about COVID-19 workplace safety protocols and the government’s plans to enforce the federal contractor vaccine mandate.

Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group will continue to monitor developments regarding legal challenges to EO 14042 and will post updates in the firm’s Coronavirus (COVID-19) Resource Center and on the firm’s Affirmative Action / OFCCP and Government Contractors blogs as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.

For more information on guidance from the Office of Federal Contract Compliance Programs (OFCCP), please join us for our two upcoming webinars. The first, “OFCCP and the Never-Ending Saga of Compensation Analyses,” will take place on Wednesday, September 14, 2022, from 2:00 p.m. to 3:00 p.m. ET. The speakers, T. Scott Kelly, Leigh M. Nason, and Lauren B. Hicks, will discuss the agency’s controversial guidance suggesting federal contractors must perform annual pay equity audits. Register here.

The second webinar, “What OFCCP’s Revitalized Enforcement Focus Means for Federal Construction Contractors,” will take place on Thursday, October 6, 2022, from 2:00 p.m. to 3:00 p.m. ET. The speakers, T. Scott Kelly, Christopher Near, and Morgan Pike Epperson, will discuss affirmative action and non-discrimination obligations that come with the $1 trillion infrastructure bill signed by President Biden in 2021. Register here.