Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On Friday, October 14, 2022, the Office of Management and Budget (OMB) and the Safer Federal Workforce Task Force (“Task Force”) announced that they anticipate further guidance will be issued following the narrowing of the existing nationwide injunction of Executive Order 14042, the executive order requiring employees working on federal government contracts be vaccinated for COVID-19 (the “contractor mandate”).
As previously reported, on August 26, 2022, the U.S. Court of Appeals for the Eleventh Circuit upheld a lower court’s injunction of the contractor mandate, but narrowed the scope of the injunction from applying nationwide to applying only to those plaintiffs in the case (i.e., Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, West Virginia, and members of the national trade association Associated Builders and Contractors, which intervened in the case). The Eleventh Circuit’s decision narrowing the district court’s nationwide injunction is anticipated to take effect when that court issues its mandate on October 18, 2022.
During the pendency of the nationwide injunction, the Task Force has not updated its guidance on compliance with the contractor mandate and has directed federal agencies to not take any action to enforce any requirement that covered contractors comply with the COVID-19 safety protocols specified in the guidance.
The announcement on Friday suggests the government might begin to again require inclusion of contract clauses requiring federal government contractors and subcontractors to vaccinate their employees in certain jurisdictions not yet subjected to an injunction. Federal agencies might be instructed to resume the enforcement of these requirements where not barred by an existing injunction.
There are a number of practical problems that the government would have to resolve prior to implementing such a state-by-state mandate. Most notably, several more courts are engaged in deciding whether the contractor vaccine mandate is lawful within their jurisdictions.
The Task Force did not set a timetable for OMB approval of whatever new guidance is issued. Accordingly, contractors are still at a wait-and-see juncture. To the extent that contractors have implemented a policy to comply with the contractor mandate, we recommend against rescinding that policy before the government issues its new guidance. Further, it is premature to modify any policy until there is further guidance on these issues. However, contractors in states not under a related injunction retain discretion in whether to enforce their current policy on vaccine mandates while the federal government is currently not enforcing the contractor mandate.
Littler Workplace Policy Institute will keep readers informed of relevant developments.