OMB Pauses Enforcement of Federal Contractor Vaccine Mandate In Light of Court Injunctions

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On December 9, 2021, the Office of Management and Budget issued updated guidance to address the nationwide injunction that currently bars, on a preliminary basis, enforcement of the federal vaccine mandate.

For federal contracts or contract-like instruments that already include a clause implementing the requirements of Executive Order 14042 (i.e., FAR 223-99), agencies are to notify the contractor that "[t]he Government will take no action to enforce the clause" where the place of performance identified in the contract is a U.S. state or outlying area "subject to a court order prohibiting the application of requirements pursuant to the Executive Order."

As of December 14, 2021, all 50 States are subject to such a court order. The list of "Excluded States or Outlying Areas" is maintained on the Safer Federal Workforce website.

For federal contracts or contract-like instruments that do not include the clause, "the agency must not attempt to add a clause implementing the requirements of the Executive order into the contract" if the contract is performed entirely in an Excluded State or Outlying area.

For all other federal contracts or contract-like instruments, when exercising an option, issuing a new order under the contract, or extending the term of the contract, "the agency must pursue bilateral modification to the contract to include the clause."  The agency may pursue bilateral modification to include the clause in existing contracts.

Solicitations should not include the clause implementing Executive Order 14042 if the work under the contract will be performed entirely in an Excluded State or Outlying Area.  If the solicitation does include such a clause "the agency must remove it through an amendment to the solicitation." 

The OMB notes that current court orders are preliminary and may be modified or vacated as litigation proceeds. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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