Court lifts contractor vaccine mandate injunction, but no enforcement starting yet

A nationwide injunction on the COVID-19 vaccine mandate for federal contractors has been officially lifted, but the federal government told agencies to hold off on enforcing the mandate. 

In late August, the U.S. Court of Appeals for the 11th Circuit ruled that the nationwide injunction on the vaccine mandate was “overbroad” and narrowed the scope of it to apply to the plaintiffs in the case (Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, West Virginia, and members of the national trade association, Associated Builders and Contractors.) Now the court has issued its mandate, which is an official notice and command to carry out its ruling. 

“Despite the lifting of the nationwide bar to enforcement on October 18, 2022, at this time agencies should not: take any steps to require covered contractors and subcontractors to come into compliance with previously issued task force guidance; or enforce any contract clauses implementing Executive Order 14042,” said a Wednesday update from the Office of Management and Budget and Safer Federal Workforce Task Force. “To allow time to develop advice and processes for meeting agencies’ obligations under Executive Order 14042 and applicable court orders, agencies should follow the instructions provided in the OMB guidance here.” 

At this time, agencies should not enforce contract clauses implementing the mandate; modify contracts to insert a clause on the mandate; or include a clause on the mandate in solicitations for new orders. 

The new guidance from OMB says that “federal agency workplace safety protocols for federal buildings and federally controlled facilities still apply in all locations,” and “contractor employees working onsite in those facilities must still follow those federal agency workplace safety protocols.” 

In anticipation of this ruling, OMB and the task force outlined last Friday what would happen if the mandate was lifted.

After the first iteration of guidance (which was released on Wednesday), the task force starts a process to update its guidance for contractor and subcontractor worksites, which will include a timeline for implementation. 

The OMB director will review the updated task force guidance and determine if it “promotes economy and efficiency in federal contracting,” as stated in the executive order. This determination will be published in the Federal Register. 

“If the OMB director makes such a determination, OMB will provide additional guidance to agencies on timing and considerations for provision of written notice from agencies to contractors regarding enforcement of contract clauses implementing Executive Order 14042, except as barred by any applicable injunctions,” said the update. 

Agencies shouldn’t take any action to require contractors and subcontractors to comply with previously issued task force guidance or enforce contract clauses implementing the vaccine mandate until OMB issues that guidance document, the update continued. 

“There are a number of practical problems that the government would have to resolve prior to implementing such a state-by-state mandate,” wrote members of the law firm Littler Mendelson P.C. in a post. “Most notably, several more courts are engaged in deciding whether the contractor vaccine mandate is lawful within their jurisdictions.”

This court action does not affect the vaccine mandate for federal employees, which is currently not being enforced.