Last week, the Biden administration updated its position regarding enforcement of the COVID-19 vaccine mandate for federal contractors in response to the nationwide preliminary injunction issued by a U.S. District Court judge in Georgia. In our previous post on this topic, we questioned whether the administration would still attempt to enforce the vaccine mandate for contracts that already include the clauses mandating vaccinations. Thankfully, the administration resolved much of that uncertainty in its updated position by confirming that it will generally not enforce the mandate. However, it stopped short of a blanket policy of non-enforcement.

According to the update, the administration will not enforce the mandate if the place of performance identified in a covered contract (e.g., a contract that includes the FAR or DFARS clauses mandating vaccinations) is in a location that is subject to a court order barring application of the mandate. It will enforce the mandate for all other covered contracts, though it exempts all employees who perform “substantial” work in connection with the contract in an area subject to a court order barring the mandate.

For now, the preliminary injunction bars the application of the mandate nationwide, so this new policy will operate as a blanket policy of non-enforcement on all contracts. That could change, however, should the nationwide injunction be pared down or eliminated entirely.

It is also important to note that this does not impact the requirements applicable to federal buildings and federally-controlled facilities. Thus, if a contractor’s employees are subject to vaccine requirements specifically because they are physically present in a federal building or facility, those requirements will still be enforced.