Biden Administration Signals that the Federal Contractor Vaccine Mandate May Go Into Effect, But Not Yet

By Conn Maciel Carey’s COVID-19 Task Force

On Friday, October 14th, the Office of Management and Budget (OMB) and the Safer Federal Workforce Task Force (Task Force) issued some “clarifications” about the expected next steps for Executive Order 14042 – the federal contractor vaccine mandate – now that the longstanding nationwide injunction restricting enforcement of the E.O. has been narrowed by order of the Eleventh Circuit.  That narrowing (to just the six States that were named parties to the legal challenge in Georgia v. Biden) took effect on October 18th.  OMB and the Task Force suggested that we would see at least three new guidance documents now that the injunction is narrowed, including:

    1. OMB would give notice to federal agencies about compliance with applicable injunctions, and also whether, where and when the new clause implementing Executive Order 14042 should be included in new solicitations and contracts.
    2. The Safer Federal Workforce Task Force would update its COVID-19 guidance for covered contractor workplaces, including a timeline for implementation.  Last week’s clarification specified that this “updated guidance [by the Task Force] will be issued following development and review by the Task Force, subject to the OMB Director’s approval and determination published in the Federal Register that the updated guidance promotes economy and efficiency in Federal contracting, in accordance with Executive Order 14042.”
    3. After the updated Task Force guidance issues, and if the OMB Director makes a determination that implementation of the E.O. in some form continues to promote economy and efficiency in federal contracting , then OMB would provide additional guidance to agencies on timing and considerations for provision of written notice from agencies to contractors regarding enforcement.

On October 19th (the day after the 11th Circuit’s narrowing of the nationwide injunction took effect), OMB did issue one of the notices we were expecting. The Task Force website includes this summary, with a link to the OMB Notice:

Here’s a link to the actual October 19th OMB notice, which is also pasted below:

Consistent with the October 14th update, OMB’s October 19th notice also reiterates that for now, contracting agencies:

    • Should NOT take any steps to require covered contractors and subcontractors to come into compliance with previously issued Task Force guidance; and
    • Should NOT enforce any contract clauses intended to implement E.O. 14042 that were already incorporated into covered federal contracts prior to the nationwide injunction.

OMB and the Safer Federal Workforce Task Force are poised to speak further still on this subject in the coming weeks.  For now, we interpret both recent updates as suggesting that it is not a forgone conclusion that the E.O. will ever go into effect, that it will not necessarily include all or any of the requirements set when the E.O. was first issued if it does go into effect, and that there will be a some meaningful runway to come into compliance before any enforcement efforts will begin.  Also, it seems there will be an opportunity, through OMB, for stakeholders to provide comment before it goes into effect.  All of that suggests to us that there will be no imminent steps needed relative to the E.O.

It is our impression that these updates were not issued because OMB and the Task Force are eager to see the E.O. implemented, but rather, because the nationwide injunction was officially lifted, the Administration felt the need to clarify that nothing was immediately becoming actionable or enforceable on October 18th, and it is still possible that it never does.

For now, though, we will have to wait for more developments, which likely will come in the form of some updated guidance from the Task Force and then some official notice from OMB to which there should be an opportunity for public comment.  We will keep our eyes peeled for that, and will continue to try to learn what we can about timing and substance from our contacts in DC.

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