Contractor Vaccine Mandate Still On Hold, For Now

The Safer Federal Workforce Task Force recently issued updated guidance on the federal contractor vaccine mandate and COVID-19 safety requirements. At least for now, the government is still not taking steps to mandate vaccines or enforce contract clauses implementing Executive Order (EO) 14042.

In August 2022, the Eleventh Circuit Court of Appeals narrowed the scope of an injunction that had barred enforcement of the contractor vaccine mandate nationwide.  On October 14, 2022, the Safer Federal Workforce Task Force and the Office of Management and Budget (OMB) announced that they expected to issue at least three new guidance documents in anticipation of the narrowed injunction.

1. First, OMB will notify agencies about “compl[ying] with applicable injunctions” and whether to include contract clauses implementing EO 14042 in new solicitations and contracts.
2. The Safer Federal Workforce Task Force will update its guidance on COVID-19 safety protocols, which will include a timeline for contractors to implement the updated guidance. The director of OMB will also review this guidance to determine whether it “promotes economy and efficiency in Federal contracting,” and that determination will be published in the Federal Register.
3. Finally, assuming the OMB director approves the updated guidance, OMB will provide guidance to agencies on the timing and other considerations for giving written notice to contractors about enforcement of contract clauses implementing EO 14042, “except as barred by any applicable injunctions.”

The Eleventh Circuit’s decision took effect on October 18, 2022. As a result, on October 19, 2022, OMB issued the first round of anticipated guidance:

Despite the lifting of the nationwide bar to enforcement on October 18, 2022, at this time 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. (Emphasis in original.)

Therefore, the vaccine mandate remains on hold while contractors wait for additional guidance from the Safer Federal Workforce Task Force and OMB.

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 to 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.