Is This the End of the Federal Contractor COVID-19 Vaccine Mandate?

On May 1, 2023, the Biden administration announced that it will end the COVID-19 vaccine requirement for federal contractors on May 11, 2023—which is the day that the COVID-19 public health emergency will end.

Quick Hits

• President Biden announced that, on May 11, 2023, the COVID-19 vaccine requirement for federal contractors would end.
• According to the Safer Federal Workforce Task Force, we can expect a new executive order (EO) rescinding the safety protocols for federal contractors.
• The task force states that “agencies should not take any steps” to comply with previous guidance or implement previous EOs.

Background and Timeline

The federal contractor vaccine mandate was not without controversy.

• On September 9, 2021, President Biden signed EO 14042—Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors—which mandated that some federal contractors and subcontractors comply with guidance by the Safer Federal Workforce Task Force.
• On December 7, 2021, United States District Judge R. Stan Baker of the Southern District of Georgia issued an order stopping enforcement of these safety protocols for federal contractors and subcontractors.
• On August 26, 2022, the U.S. Court of Appeals for the Eleventh Circuit narrowed the scope of this nationwide injunction to cover “any plaintiff State or member of Associated Builders and Contractors.”
• On October 18, 2022, the Eleventh Circuit’s decision took effect.
• On October 19, 2022, as a result of the Eleventh Circuit’s decision, the Office of Management and Budget (OMB) issued guidance stating that agencies should not “(1) take any steps to require covered contractors and subcontractors to come into compliance with previously issued Task Force guidance; or (2) enforce any contract clauses implementing Executive Order 14042.”
• On December 19, 2022, a panel for the U.S. Court of Appeals for the Fifth Circuit affirmed a preliminary injunction blocking enforcement of EO 14042.
• On January 12, 2023, the U.S. Court of Appeals for the Sixth Circuit upheld most of the district court’s injunction blocking the federal contractor vaccine mandate.

Next Steps

According to the Safer Federal Workforce Task Force website, President Biden will be announcing an EO rescinding the COVID-19 safety protocols for federal contractors, effective May 12, 2023. “In the interim,” the task force states, “agencies should not take any steps to require covered contractors and subcontractors to come into compliance with previously issued Safer Federal Task Force guidance, or enforce any contract clauses implementing Executive Order 14042.” The task force is expected to issue further guidance following the publication of a new EO.

Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group will continue to monitor developments regarding the federal contractor vaccine mandate 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.