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Following Recent Nationwide Injunction of Federal Contractor Mandate, the Government Will Not Enforce Contract Clause Obligations… For Now

on Thursday, 9 December 2021 in Covid-19 Information Hub

According to a December 9, 2021 posting on the Safer Federal Workforce Task Force’s website, the Office of Management and Budget issued guidance[1] related to its enforcement of the federal contractor vaccine mandate.  This guidance comes two days after a federal court in Georgia issued a nationwide preliminary injunction halting the implementing requirements of Executive Order 14042.  Such requirements, imposed via the inclusion of a specific contract clause, require federal contractors and subcontractors to comply with a vaccination mandate and other safety protocols articulated in the Safer Federal Workforce Task Force’s Guidance (the “Guidance”) (see article on the nationwide injunction here). 

OMB’s guidance states that the federal government will not enforce the contract clause for any existing contracts that already contain the new clause, so long as the place of performance in the contract is a “U.S. State or outlying area” subject to a court order (“Excluded State or Outlying Area”).  The guidance then states that currently, Excluded States or Outlying Areas related to the recent nationwide injunction include:

  1. The fifty States;
  2. The District of Columbia;
  3. The commonwealths of Puerto Rico and the Northern Mariana Islands;
  4. The territories of American Samoa, Guam, and the United States Virgin Islands; and
  5. The minor outlying islands of Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Atoll.

The OMB further states that it will not enforce the clause 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.  In all other circumstances (which at this point appear to be scarce), the federal government will enforce the clause.  

While it appears strange for OMB to go into such detail in limiting its language to Excluded States or Outlying Areas, particularly because the current injunction is applicable nationwide, it appears OMB intends for this guidance to remain in place after current litigation resolves. In this way, if the nationwide injunction is lifted, and other federal courts subsequently issue an injunction limited to specific jurisdictions, the federal government would still be able to enforce the vaccine mandate obligations in jurisdictions not covered by such injunctions.

We note that relevant COVID-19 workplace safety protocols in federal buildings or federally controlled buildings will still apply.  Therefore, contractor employees who come onsite to a federal building must following the relevant Federal agency safety protocols.

Finally, as mentioned in our last article, subcontractors who have entered into contracts with other businesses that include the “flowed down” contract clause may still be subject to the obligations.  Therefore, subcontractors should review the relevant contract in its entirety, and if it does not include language that would excuse compliance in this scenario, subcontractors may wish to contact the business regarding their intent to enforce it.

[1] As of the time this article was published, no such guidance was publicly released.

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