OMB’s Guidance Follows Federal Injunctions of the Contractor Vaccine Mandate
The Office of Management and Budget (OMB) provided guidance to agencies to ensure compliance with the court orders currently applicable to federal contractors in the United States and outlying areas. With a nationwide preliminary injunction in effect, federal contractors will not be required to comply with a vaccine mandate imposed by President Biden.
The states and outlying areas excluded from the court orders are all 50 states, Puerto Rico, the Mariana Islands, and U.S. territories.
The new guidance follows the decision of Stan Baker, District Judge of the United States District Court for the Southern District of Georgia, who blocked the Biden administration's vaccination mandate for government contractors. It is the second significant ruling regarding the administration's vaccine mandate for contractors. The legal reasoning for the Georgia decision was similar to that for the preliminary injunction Judge Gregory F. Van Tatenhove issued last week from the Eastern District of Kentucky, which applied to only three states: Kentucky, Ohio, and Tennessee.
“Both court orders are preliminary and may be supplemented, modified or vacated, depending on the course of ongoing litigation. Given the uncertainty surrounding the court orders, OMB has formulated this updated guidance to be applicable even if the existing court orders change or new orders are issued,” stated the guidance.
Following guidance from the OMB, the government will not enforce vaccine mandates in contracts that already exist. Contracts without a clause regarding the vaccine mandate should not be amended to implement the mandate's requirements.
In future solicitations, OMB stated that a vaccine mandate clause should not be included if the work will be performed completely in an excluded state or some outlying area. The agency must include a vaccine mandate clause in all other solicitations where the vaccine mandate is applicable but should note that it will not be enforced in excluded states and outlying areas.
Furthermore, the guidance indicates that COVID-19 workplace safety protocols still apply to Federal agencies, and contractor employees must follow these protocols when working onsite.
“In all other circumstances, the government will enforce the clause, except for contractor employees who perform substantial work on or in connection with a covered contract in an excluded state or outlying area, or in a covered contractor workplace located in an excluded state or outlying area,” according to an update from the Safer Federal Workforce Task Force.
Despite the numerous legal challenges to the vaccine mandate, the Biden administration has reported a slight increase in the number of executive branch employees complying with their agencies' requirements.
