Last year, the U.S. District Court for the Southern District of Georgia issued a nationwide injunction against President Biden’s federal contractor COVID-19 vaccine mandate in Executive Order 14042. On Aug. 26, 2022, as McGuireWoods previously reported, the U.S. Court of Appeals for the Eleventh Circuit significantly narrowed the scope of that injunction, holding that it applies only to seven states who are contract parties (and private parties who are members of the Associated Builders and Contractors).
On Oct. 14, 2022, the Office of Management and Budget (OMB) and the Safer Federal Workforce Task Force announced that further guidance may issue once the Eleventh Circuit’s decision took effect. Specifically, the Task Force anticipated the release of three documents: (1) OMB’s notice to federal agencies regarding compliance with injunctions and the inclusion of vaccine mandate clauses in future solicitations and contracts; (2) updates to Task Force guidance on safety protocols for covered contractor and subcontractor workplace locations, including a timeline for implementation; and (3) additional OMB guidance on “timing and considerations for provision of written notice from agencies to contractors regarding enforcement of contract clauses” implementing vaccine and workplace safety mandates.
The Eleventh Circuit’s decision took effect Oct. 18, 2022. The next day, the Task Force clarified that, despite the lifting of the nationwide injunction, agencies should not take any steps to mandate contractor vaccines or enforce Executive Order 14042 contract clauses until further notice. Consequently, federal government contractors remain in a holding pattern awaiting additional information from OMB and the Task Force. Until OMB and the Task Force issue that guidance, the federal government will not mandate vaccines pursuant to Executive Order 14042.
McGuireWoods will continue to monitor this evolving situation and will provide updates as information becomes available.
For questions about compliance with the federal contractor vaccine mandate or ongoing litigation challenging it and other federal COVID-19 employee requirements, please contact the authors of this alert, your McGuireWoods contact, or a member of the firm’s affirmative action, federal contracting, labor and employment, or COVID-19 response teams.