UPDATED AS OF 10/26/2022:
Changing course after its August 31 announcement that it would not enforce the federal government contractor vaccination mandate absent further written notice, on October 14, 2022, OMB and the Task Force published an update stating that they plan to issue at least three new guidance documents with an eye toward potentially resuming enforcement of the mandate:
- First, OMB plans to notify Federal agencies about compliance with applicable injunctions and whether contract clauses implementing the mandate should be included in new solicitations and contracts.
- Second, the Task Force plans to update its November 2021 workplace safety protocols guidance related to the mandate. The updated guidance will provide a timeline for any implementation long enough to ensure that covered contractors can come into compliance as needed.
- Third, OMB will review the safety protocols guidance and make a determination on whether it promotes economy and efficiency in government contracting. If OMB makes such a determination, it will provide additional guidance to agencies on timing and considerations for providing written notice to contractors regarding enforcement, except as barred by any injunction.
On October 19, 2022, OMB issued the first of these three guidance documents. The two-page memorandum reiterates that “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 [the vaccine mandate].” OMB’s memo further provides that: (a) for existing contracts that already contain the contractor vaccine mandate clause, agencies should continue NOT to enforce those provisions unless/until OMB issues future guidance; (b) for existing contracts that do not contain the contractor vaccine mandate clause, at this time agencies should NOT to modify the contract to incorporate the clause at this time, even when renewing or extending the contract; and (c) for new solicitations, at this time agencies should NOT include the contractor vaccine mandate clause.
These updates emphasize that federal agencies should not take steps to require contractors to come into compliance or to enforce any contract clauses implementing the mandate unless and until the third guidance document is published. The upshot of this announcement is that the administration appears set to pursue some limited, forward-looking implementation of the contractor vaccine mandate, although only after a series of regulatory steps have been completed and contractors have been given time to come into compliance. We will continue to monitor for developments, including the issuance of the forthcoming second and third updates from the Task Force and OMB, and provide updates here.
UPDATED AS OF 9/1/2022: On August 31, 2022, the Safer Federal Workforce Task Force officially announced that the Federal Government will not enforce the federal government contractor vaccination mandate, absent further written notice. The Task Force announcement is posted on its website here.
An analysis of the Eleventh Circuit decision that preceded this announcement is below.
On Friday, August 26, 2022, the U.S. Court of Appeals for the Eleventh Circuit upheld but narrowed a preliminary injunction currently in place against the Biden Administration’s COVID-19 vaccine mandate for federal government contractors (“the mandate”). As discussed in our previous post, in December 2021, the U.S. District Court for the Southern District of Georgia issued a nationwide preliminary injunction blocking the mandate. The Eleventh Circuit’s decision drops the nationwide injunction, and now blocks enforcement of the mandate only with respect to the plaintiffs in the case: Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia, and the construction trade group Associated Builders and Contractors, Inc.
Although narrower in scope, the decision is certainly a blow to the mandate. The Government already had placed a moratorium on enforcing the mandate, and the Eleventh Circuit’s ruling, which found that the plaintiffs were at least reasonably likely to succeed on the merits, could dampen the administration’s enthusiasm for attempting to restart enforcement of the mandate.
However, the decision leaves open a number of questions about the future of the mandate, many of which depend on how aggressively the Government pursues the matter. The upheld-but-narrowed injunction now sits alongside a patchwork of other state-specific injunctions issued by various other federal district courts, including the District of Arizona, Eastern District of Kentucky, Western District of Louisiana, Eastern District of Missouri, and Middle District of Florida. In theory, the Government could seek to re-impose the mandate in jurisdictions not covered by these existing injunctions, though that strikes us as unlikely given a range of political and practical considerations. The Government also could pursue appeals of the decisions from other federal district courts, thereby preserving the possibility of a circuit split and even an eventual decision by the Supreme Court.
But perhaps most interesting, the Eleventh Circuit decision poses substantial questions about the ability of the executive branch to regulate federal contractors. The executive has long been considered to have broad powers to regulate contractors, but Friday’s decision suggests a limit on that authority, at least under the Federal Property and Administrative Services Act (referred to in the decision as the “Procurement Act”). Whether (and how) the Eleventh Circuit’s decision affects other efforts to regulate the contracting community is an open question that will need to be fleshed out in future cases. In the meantime, we will continue to monitor for developments and provide updates here.