As we previously reported, two federal courts, one in Kentucky and the other in Georgia, collectively have enjoined the government from enforcing the vaccine mandate for federal contractors and subcontractors set forth in Executive Order 14042, in all covered contracts in any state or territory of the United States of America.  The Justice Department recently filed notices of appeal, but the injunctions remain in place. 

In response to the nationwide injunctions, the Office of Management and Budget issued guidance on implementing requirements of Executive Order 14042, while ensuring compliance with applicable court orders and injunctions.  The guidance specifically provides that the government will not take action to enforce the federal contractor vaccine mandate, where the place of performance identified in the contract is in the United States or its outlying areas as identified below:

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 guidance also noted that federal agency COVID-19 workplace safety protocols for federal buildings and federally controlled facilities continue to apply in all locations. Therefore, federal contractor employees working onsite in those buildings and facilities must still follow federal agency workplace safety protocols when working onsite, including either being  vaccinated or having a negative COVID-19 test within the past three days, and potentially wearing a mask and physically distancing from other people.

Employers should keep in mind that the legal landscape pertaining to COVID vaccine mandates is changing almost daily.  Foley has created a multidisciplinary and multijurisdictional team that has prepared a wealth of topical client resources and is prepared to help clients meet the legal and business challenges created by Executive Order 14042, the CMS vaccine mandate, the OSHA ETS, and state and local ordinances.