As we previously reported, on August 26, 2022, the U.S. Court of Appeals for the Eleventh Circuit issued a decision narrowing the nationwide injunction against the COVID-19 vaccination mandate for federal contractor employees set forth in President Biden’s Executive Order 14042.  Although the Eleventh Circuit found the vaccination mandate to be unlawful, it found the nationwide injunction (applicable to all federal contractors across the country) to be overbroad, and reduced to scope of the injunction to apply only to the States and parties that challenged the mandate in the case.  This allows the vaccination mandate to go into effect for federal contractors in the majority of the country.  On October 14, 2022, the Safer Federal Workforce Task Force issued guidance about its intentions and course of action following the Eleventh Circuit’s decision.

The new Task Force guidance strongly applies that the federal government will resume enforcing Executive Order 14042’s vaccine mandate.  Before the government does so, however, the Task Force outlines a three-step process that will occur:

• First, the Office of Management and Budget will notify federal agencies regarding their obligations to comply with the remaining injunctions against Executive Order 14042, which continue in effect.

•  Second, the Task Force will update its guidance regarding COVID-19 safety protocols for federal contractor and sub-contractor workplaces.  Due to the injunctions, the Task Force has not updated its contractor guidance since November 2021, despite great changes in the state of the COVID-19 pandemic since that time.  The October 14, 2022 notice does not provide any hints as to what types of updates the Task Force may make.

•  Third, and finally, OMB will provide additional guidance to federal agencies regarding the resumption of enforcement of contract clauses implementing Executive Order 14042’s requirements.  Prior to this notice, the federal government will continue to not enforce any of Executive Order 14042’s requirements.

The timeframes under which these steps will occur are not defined by the Task Force’s notice.

As noted above, the Eleventh Circuit’s decision did not affect other pending injunctions prohibiting enforcement of the vaccination mandate against contractors and subcontractors in the States of Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, Wyoming, Kentucky, Tennessee, Ohio, and Florida.  In addition, members of the Associated Builders and Contractors also retain the protection of the former nationwide injunction.

All other contractors not covered by pending injunctions will need to resume their efforts to comply with Executive Order 14042.  That said, it is unknown at this time how the Task Force will modify its guidance.  For example, will the Task Force now require that covered contractor employees obtain booster shots, in addition to the initial vaccination.  Although the exact contours of the modified guidance are important, there are steps federal contractors can take to begin preparing now, to avoid being caught under potentially short deadlines as the three-step process unfolds over an unknown timeline.