Unbelievably, after the 11th Circuit narrowed the nationwide injunction issued by the Southern District of Georgia on August 30, which took effect when the court issued its mandate on October 18, the government began preparing to enforce the vaccine mandate against contractors not covered by one of the six district court injunctions.

This is despite the following being true:

  • The president stated in September that “the pandemic is over.”
  • The government acknowledged that, contrary to representations that were being made at the time the president issued Executive Order 14042 mandating that government contractor employees, among many others, get vaccinated, the vaccines do not stop people from getting sick or from spreading COVID (the Centers for Disease Control and Prevention now claims only that the vaccines may reduce the severity of illness).
  • Based on the multiple district court injunctions already in place, the government appears to have little chance of convincing a court that the president had the authority to issue Executive Order 14042 in the first place.

On October 14, OMB and the Task Force announced that the Task Force would be updating its guidance regarding safety protocols for covered contractor and subcontractor workplace locations that will include a timeline for implementation. According to subsequent October 19 guidance, the Director of OMB will then decide whether the new guidance “promotes economy and efficiency in federal contracting,” the only requirement the government believes needs to be met to rely on the Federal Property and Administrative Services Act’s authorization to the president to ensure the procurement system is economical and efficient.

If that determination is made, it will be published in the Federal Register. Once that is done, OMB will direct agencies on the timing of notice to contractors about enforcement of the contract clauses in current contracts and the addition of the clauses to new contracts and solicitations “except as barred by any applicable injunctions.” That determination is going to be complicated given that the requirement is currently enjoined in five states (Arizona, Florida, Kentucky, Ohio, or Tennessee) against 20 states acting as contractors (Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Carolina, South Dakota, Utah, Wyoming, and West Virginia) – and against any member of Associated Builders and Contractors (ABC). And with the government gearing up to enforce this, there could be more in the next few weeks.  Associated Builders and Contractors may also experience a rapid increase in membership.

For now, the interim guidance is that agencies:

  1. Should not enforce any contract clauses enforcing EO 14042 regardless of party or location.
  2. Should not modify contracts to insert a clause implementing EO 14042 “even when renewing, extending the term or, placing a new order against, or exercising an option under the contract.
  3. Should not include a clause implementing EO 14042 in solicitations, and for solicitations for orders under existing ID/IQ contract, the government should continue not to enforce that clause.

The October 19 guidance only applies to EO 14042.  There are no changes to the Task Force’s guidance applicable to workplace safety protocols for federal agencies, and contractors must continue to comply with federal agency workplace safety protocols for federal buildings and federally controlled facilities when working onside.

So, for now, there is no requirement to comply with the clause even if it is already your contract, the government should not be attempting to modify your existing contracts to include the clause, and the clause should not appear in any solicitations.  Contractors should be vigilant to ensure that federal agencies are complying with this OMB guidance.

If you have any questions about what to do in light of these vaccine mandate developments, please contact Richard Arnholt at rarnholt@bassberry.com or 202-827-2971.