Wednesday, October 19, 2022: Biden Administration On The Horns of Another Vaccination Mandate Dilemma: While the Legal “Cuffs Are Now Off” Allowing Reinstatement of the President’s COVID-19 Vaccine Mandate for Federal Contractors, The President is Now Slow Walking The Reinstatement of His Mandate
The Office of Management and Budget (OMB)—the administrative arm of the White House regulating the federal Executive Branch agencies for The President–and the Safer Federal Workforce Task Force (“SFWTF”) initially announced on Friday, October 14th that they intended to soon issue guidance related to COVID-19 safety protocols for covered contractor and subcontractor work locations. The agencies then updated that October 14th guidance on October 19th. Significantly, both guidances also instruct the federal Executive Branch agencies, in no uncertain terms, to NOT impose vaccination mandates at this time pending …. pending what?…further announcements from OMB.
EDITOR’S NOTE: Last week’s pause in the renewed imposition of a federal contractor vaccination mandate, now ripe and ready to be implemented (as of last Tuesday, October 18th, 2022) to federal contractors in 28 states (and the populated federal territories), and not on covered federal contractors in 22 other states (15+7: see below) where injunctions still enjoin the President’s vaccination mandate, is clearly designed to in fact allow an embattled President to:
(a) get past the mid-term elections in progress now and ending in 17 days;
and
(b) to buy time to see if the COVID-19 pandemic can wind down further to avoid the imposition of yet another highly unpopular vaccination mandate at a time the President has declared the COVID-19 pandemic to be over. Remember, it has been almost two full months since the United States Court of Appeals for the 11th Circuit (Atlanta) issued its August 26, 2022, decision (see below) lifting the nationwide ban on the vaccination mandate President Biden had ordered federal contractors to implement over a year ago (on September 9, 2021). The nationwide injunction was set to formally end on Tuesday of last week: October 18, 2022…hence the timing of the guidances on Oct 14 and Oct 19.
That October 19th guidance is now contained and reflected in the updated October 14th guidance at the same URL link. (OMB/SFWTF merely (helpfully) edited on top of their October 14th guidance. Accordingly, you may see both the original Oct 14th guidance and the Oct 19th update on the same page). The updated guidance documents came on the heels of the Eleventh Circuit Court of Appeals’ August 26th decision to narrow a previously issued nationwide injunction against the Biden Administration’s COVID-19 vaccination requirement for federal contractor and subcontractor workforces (that we previously discussed here). As such, federal contractors and subcontractors NOT in one of the 22 states subject to injunction (listed below) should anticipate having to update COVID-19 vaccination policies for their employees at some point in the future…depending on politics and the future course of the continued spread, or not, of the COVID-19 virus.
How We Got Here
President Biden instructed federal executive agencies and departments (via Executive Order 14042) on October 9, 2021, to include a clause in federal contracts requiring contractors and subcontractors to comply with guidelines from the SFWTF related to protection against the COVID-19 virus. These guidelines required that all covered contractor employees had to be fully vaccinated for COVID-19, imposed masking and physical distancing requirements in covered workplaces and required designation of COVID-19 safety coordinator(s) at covered workplaces.
A litany of litigation soon followed. Federal contractors, including many states that had signed federal contracts (typically via state institutions of higher learning and/or state utility companies), filed Complaints in the federal courts. Those Complaints resulted in injunctions halting the enforcement of the SFWTF guideline in several jurisdictions, including 15 states which had brought the litigation (Alaska, Arizona, Arkansas, Florida, Iowa, Kentucky, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Dakota, Tennessee, and Wyoming). Additionally, a lawsuit seven other states brought (Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia) before the U.S. District Court for the Southern District of Georgia, resulted in the issuance of an (ironically dated) December 7th, 2021 nationwide injunction as to the Biden vaccine requirement. We discussed that case decision and its implication here and here.
In response to the nationwide injunction, the SFWTF soon thereafter issued guidance indicating the federal government would take no action to enforce any of the implementing requirements of Executive Order 14042 in light of the nationwide injunction of the vaccine mandate. We reported that guidance in our December 13, 2021 WIR. However, once the Eleventh Circuit Court of Appeals held that a nationwide injunction was overly broad and restricted the injunction from the Southern District of Georgia to the seven states and the Associated Builders and Contractors who brought suit as plaintiffs, the Biden Administration was “greenlighted” to reinstate its COVID-19 vaccination mandate imposed on federal contractors in selected states after the federal courts formally lifted the nationwide injunction effective last Tuesday on October 18, 2022.
With the OMB and SFWTF’s notice last week, that time has now come. First, the Administration will provide guidance to federal agencies related to what injunctions remain in place and how the agencies should comply with the current legal landscape. OMB has promised guidance that will include instructions to federal agencies as to whether they may begin inserting appropriate clauses into applicable federal contracts to apply to federal contractors.
Second, the Biden Administration (through the OMB and SFWTF) indicated it intended to update its guidance related to the enforcement of Executive Order 14042. This update will include a timeline for covered contractors and subcontractors to implement compliance with any new safety protocols that may issue. It is unclear at this point what updated protocols the guidance may require, given the changing breadth of the COVID-19 pandemic and more recent scientific studies related to what works best to combat the spread of the COVID-19 virus.
Finally, the Administration instructed the OMB to ensure any new guidance promotes “economy and efficiency in Federal contracting” so that agencies can provide written notice to contractors regarding the timing and enforcement of Executive Order 14042. Readers may recall that the authority to ensure “economy and efficiency in Federal contracting” under the Federal Procurement Act was the basis by which the Biden Administration justified imposing a federal contractor vaccine mandate (and which argument the courts imposing injunctions uniformly rejected as insufficient authority). This final step is clearly an attempt by the Administration to better shield any future guidance from potential judicial obstruction.
What Should Federal Contractors Do Now?
Contractors need to start preparations now to comply unless you want to “roll-the-dice” and hope that politics and the future course of the improving COVID-19 sickness and death rates will operate to stop implementation of the President’s federal contractor COVID-19 vaccination mandate. It might be well to “dust off,” review, and reacquaint yourself with any prior policies your company may have enacted during prior lockdowns so you know what vaccination and mask policies were or are currently in place. Remembering where you have been may better allow your company to pivot to whatever the new guidance may require. Those contractors and subcontractors concerned that any future guidelines may be overreaching should also begin to now undertake efforts to lobby the Administration as to appropriate limitations on its future promised guidance. Arguments related to the consequences of overly burdensome limitations on an economy nearing recession may prove persuasive to an Administration already bloodied by the vaccination controversy.