On December 7, 2021, in Georgia v. Biden, Case No. 1:21-cv-163, a federal district court judge in the U.S. District Court for the Southern District of Georgia issued a preliminary injunction enjoining enforcement of the COVID-19 vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States. This injunction was nationwide applied to all federal contractors. The federal government appealed that decision to the 11th Circuit.  

In response to that nationwide injunction, the Safer Federal Workforce Task Force, the government entity charged with implementing Executive Order 14042 and the federal contractor COVID-19 vaccine mandate, stated that the federal government would not be taking action to enforce the federal contractor vaccine mandate until its appeal was resolved. 

On August 26th, the 11th Circuit affirmed the district court’s decision that the federal contractor vaccine mandate was outside the scope of President Biden’s authority. The 11th Circuit, however, also found that the district court of Georgia’s nationwide injunction against enforcement of President Biden’s federal contractor vaccine mandate was too broad, and narrowed the scope of the injunction to only the parties to Georgia v. Biden.

On October 14, 2022, the Safer Federal Workforce Task Force issued a new statement regarding the 11th Circuit’s decision and the narrowing of the injunction against the federal contractor vaccine mandate. The Task Force stated that it anticipates the narrowing of the nationwide injunction to come into effect on October 18, 2022, and that, in response to the narrowing of the nationwide injunction, it anticipates three new guidance documents will be issued:

• The Office of Management and Budget will provide guidance regarding compliance with any applicable injunctions and whether contract clauses implementing Executive Order 14042 (the federal contractor vaccine mandate) should be included in any new solicitations and contracts;
• The Safer Federal Workforce Task Force will begin a process to update its guidance regarding COVID-19 safety protocols for covered contractor and subcontractor workplace locations, including a timeline for implementation to ensure that covered contractors and subcontractors are able to come into compliance with any COVID-19 safety protocols specified by the Task Force that they are not presently following; and
• Additional guidance to agencies will be provided on timing and considerations for provision ‎of written notice to contractors regarding enforcement of contract clauses ‎implementing Executive Order 14042, except as barred by any applicable injunctions.‎

            These new guidance documents have not yet been issued. The Safer Federal Workforce Task Force did not provide a specific deadline when the new guidance will be issued. The Task Force did state that, until the guidance is issued:

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 Executive Order 14042.

            Given this new statement form the Safer Federal Workforce Task Force, federal contractors who are potentially subject to the federal contractor vaccine mandate or the Task Force guidelines should continue to monitor the Safer Federal Workforce Task Force website for updates.

UPDATE: On October 19, 2022 

The Safer Federal Workforce Task Force has announced that OMB has issued new guidance.

In the new guidance, OMB states that agencies should not, at this time, take any steps to implement the federal contractor vaccine mandate:  “Despite the lifting of the nationwide bar to enforcement on October 18, 2022, 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 Executive Order 14042.”  The OMB explained that the Safer Federal Workforce Task Force will be developing new guidance and that agencies should not take action until that new guidance is completed.

The OMB guidance specifically directs the following:

• Agencies should not modify existing contracts to include the clause implementing the federal contractor vaccine mandate;
• Agencies should not include the clause implementing the federal contractor vaccine mandate in new solicitations, including orders under IDIQ contracts; and
• Agencies should not enforce the federal contractor vaccine mandate for those contracts that already contain a clause implementing the federal contractor vaccine mandate. 

            The OMB guidance, however, also specifically states that its guidance does not change or alter the COVID-19 safety protocols that apply to federal government worksites, including those protocols that apply to federal contractor employees working at a government worksite:  “There is no change to the Safer Federal Workforce Task Force’s guidance for COVID-19 workplace safety protocols for Federal agencies pursuant to Executive Order 13991. Federal agency workplace safety protocols for Federal buildings and Federally controlled facilities still apply in all locations. Contractor employees working onsite in those facilities must still follow those Federal agency workplace safety protocols.”