OMB Guidance Potentially Resurrects US COVID-19 Vaccine Mandate for Government Contractors

On October 18, 2022, the Office of Management and Budget (“OMB”) issued guidance to federal agencies that it may again enforce the COVID-19 vaccine mandate for federal contractors issued under Executive Order (“EO”) 14042. That enforcement would only occur after the Safer Federal Workforce Task Force (“Task Force”) updates its COVID-19 safety protocols (and OMB approves such guidance) and after OMB provides additional guidance to agencies on contract clauses implementing the requirements of EO 14042.¹ Until then, federal agencies will not enforce the vaccine mandate.

The impetus for OMB’s guidance was the US Court of Appeals for the Eleventh Circuit’s decision narrowing the applicability of a nationwide injunction against enforcement of the contractor vaccine requirement under EO 14042 to only the plaintiffs in the case.² As a result, “active court orders will prohibit enforcement of [EO 14042] in some locations as to some entities.”³

OMB did not provide a timeline for when the Task Force will issue its updated safety protocols or for when OMB will provide further guidance to federal agencies on enforcing contract clauses that implement EO 14042. But, until then, OMB provided agencies with the following interim guidance:

1. For existing contracts that contain a clause implementing requirements of EO 14042: Agencies should continue NOT enforcing any contract clause implementing requirements of EO 14042—regardless of party or location—until OMB provides future guidance.
2. For existing contracts that do not contain a clause implementing requirements of EO 14042: Agencies should NOT modify the contract to insert a clause implementing requirements of EO 14042, even when renewing, extending the term of, placing a new order against, or exercising an option under the contract.
3. For solicitations, including solicitations for new orders to be issued under existing indefinite delivery/indefinite quantity contracts: Agencies should NOT include a clause implementing requirements of EO 14042. If the agency is conducting a solicitation for new orders under an existing indefinite delivery/indefinite quantity contract that contains a clause implementing requirements of EO 14042, the agency should continue NOT enforcing that existing clause.⁴

As detailed above, this guidance is temporary and allows OMB “time to develop advice and processes for meeting agencies’ obligations under EO 14042 and applicable court orders.”⁵ Until OMB issues such guidance, federal contractors should expect agencies to continue non-enforcement of EO 14042’s COVID-19 vaccine mandate.

¹ Office of Management and Budget, Update Regarding Executive Order 14042, at 1 (Oct. 19, 2022), https://www.saferfederalworkforce.gov/downloads/OMB Guidance for Agencies_EO 14042_20221019.pdf.

² Georgia v. Biden, No. 21-14269 (11th Cir. Oct. 18, 2022); Georgia v. Biden, No. 1:21-cv-00163, Doc. 115 (S.D. Ga. Oct. 19, 2022); see also Georgia v. President of the United States, No. 21-14269, 2022 WL 3703822, at *1, 17 (11th Cir. Aug. 26, 2022); Marcia G. Madsen & Kelyn J. Smith, US Eleventh Circuit Affirms Injunction Against Federal Contractor Vaccine Mandates But Limits Previously Nationwide Scope, MAYER BROWN, https://www.mayerbrown.com/en/perspectives-events/publications/2022/08/us-eleventh-circuit-affirms-injunction-against-federal-contractor-vaccine-mandates-but-limits-previously-nationwide-scope.

³ Office of Management and Budget, Update Regarding Executive Order 14042, at 1 (Oct. 19, 2022), https://www.saferfederalworkforce.gov/downloads/OMB Guidance for Agencies_EO 14042_20221019.pdf.

⁴ Id. at 2.

⁵ Id. at 1.