OFCCP Week in Review: October 2022 #4 | Direct Employers Association

Wednesday, October 19, 2022: The Biden administration on the horns of another vaccine mandate dilemma: While the “legal handcuffs are now off” allowing the reinstatement of the president’s COVID-19 vaccine mandate for federal contractors, the President is now slowing down the restoration of His mandate

The Office of Management and Budget (OMB)—the administrative arm of the White House that regulates federal executive branch agencies for the president—and the Federal Workforce Security Task Force (“SFWTF “) initially announcement on Friday, October 14 that they intended to release guidelines for COVID-19 safety protocols for contractors’ and subcontractors’ indoor workplaces soon. The agencies then updated those October 14 guidelines on October 19. Significantly, both directives also instruct federal executive branch agencies, in no uncertain terms, NOT to impose any currently pending vaccination mandates…. waiting for what?… more announcements from the OMB.

EDITOR’S NOTE: Last week’s pause in the renewed imposition of a federal contractor vaccination mandate, now mature and ready to be implemented (as of Tuesday, October 18, 2022) on federal contractors in 28 states (and populated federal territories ), and not on covered federal contractors in 22 other states (15+7: see below) where injunctions still enjoin the president’s vaccination mandate, is clearly designed to in effect allow a beleaguered president to:

(a) exceed midterm elections in progress and which end in 17 days;


(b) buy time to see if the COVID-19 pandemic can slow down further in order to avoid the imposition of another highly unpopular vaccination mandate at a time when the President has declared that the COVID-19 pandemic was over. Remember, it’s been nearly two full months since the United States Court of Appeals for the 11th Circuit (Atlanta) issued its August 26, 2022 decision (see below) lifting the national warrant ban. vaccine that President Biden ordered federal contractors to implement more than a year ago (September 9, 2021). The national injunction was to officially end on Tuesday of last week: October 18, 2022…hence the timing of the October 14 and 19 directives.

This guidance from October 19 is now contained and reflected in the October 14 update. tips at the same URL link. (OMB/SFWTF has simply (helpfully) edited in addition to their October 14 guidelines. As a result, you can see both the original October 14 guidelines and the October 19 update on the same page). The updated guidance documents followed the August 26 decision of the Eleventh Circuit Court of Appeals. decision to restrict a previously issued nationwide injunction against the Biden administration’s COVID-19 vaccination requirement for the workforce of federal contractors and subcontractors (which we have already discussed here). As such, federal PAS contractors and subcontractors in any of the 22 injunctive states (listed below) should anticipate updating COVID-19 vaccination policies for their employees at some point in time. the future…depending on the policy and future development of the continued spread or not of the COVID-19 virus.

How we got here

President Biden educated federal executive agencies and departments (via Executive Order 14042) on October 9, 2021, to include a clause in federal contracts requiring contractors and subcontractors to comply with SFWTF guidelines for protection against the COVID-19 virus. These guidelines required that all employees of covered contractors be fully vaccinated against COVID-19, imposed masking and physical distancing requirements at covered workplaces, and required the designation of one or more COVID-19 safety in covered workplaces.

A litany of litigation soon followed. Federal contractors, including many states that had signed federal contracts (usually through state institutions of higher education and/or state utility companies), filed suits in federal courts. These complaints resulted in injunctions terminating the application of the SFWTF directive in several jurisdictions, including 15 states that had initiated the litigation (Alaska, Arizona, Arkansas, Florida, Iowa, Kentucky, Missouri, Montana, Nebraska, New Hampshire , North Dakota, Ohio, South Dakota, Tennessee and Wyoming). Additionally, a lawsuit filed by seven other states (Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia) in the U.S. District Court for the Southern District of Georgia resulted in the emission from an (ironically dated) December 7, 2021 at national scale injunction as to the Biden vaccine requirement. We discussed this decision and its implications here and here.

In response to the national injunction, the SFWTF issued shortly after tips indicating the federal government would take no action to enforce any of the implementation requirements of Executive Order 14042 in light of the national vaccine mandate injunction. We have indicated that the advice in our December 13, 2021 RIF. However, once the Eleventh Circuit Court of Appeals ruled that a nationwide injunction was too broad and limited the Southern District of Georgia injunction to the seven states and associated builders and contractors who sued as plaintiffs, the Biden administration was “all cleared.” to reinstate its COVID-19 vaccination mandate imposed on federal contractors in certain states after federal courts formally lifted the nationwide injunction effective last Tuesday, October 18, 2022.

With advice from the OMB and SFWTF last week, that time has now come. First, the Administration will provide guidance to federal agencies on what injunctions remain in place and how agencies must comply with the current legal landscape. The OMB has promised guidelines that will include instructions to federal agencies as to whether they can begin inserting appropriate clauses into applicable federal contracts to apply to federal contractors.

Second, the Biden administration (through the OMB and SFWTF) has indicated that it intends to update its guidelines for implementing Executive Order 14042. This update will include a timeline for covered contractors and subcontractors to implement compliance with any new security protocols that may issue. It is unclear at this point what updated protocols the guidelines may require, given the changing magnitude of the COVID-19 pandemic and more recent scientific studies related to what works best to combat the spread of the virus. COVID-19 viruses.

Finally, the administration asked the OMB to ensure that any new guidance promotes “economy and efficiency in federal contracts” so that agencies can provide written notice to contractors regarding timing and enforcement of Executive Order 14042. Readers may recall that the authority to ensure “the economy and efficiency of federal contracts” under the federal procurement law was the basis on which the Biden administration justified the imposition of a vaccine warrant from the federal contractor (and this argument that courts imposing injunctions have uniformly dismissed as insufficient authority.) This latest step is clearly an attempt by the administration to better shield any future direction of possible legal obstruction.

What should federal contractors do now?

Entrepreneurs need to start preparations now to comply unless you want to “roll the dice” and hope that the policy and future evolution of improving COVID-19 illness and death rates will work for halt the implementation of the President’s federal contractor COVID-19 vaccination mandate. It may be a good idea to “dust off”, review and familiarize yourself with any past policies your business may have adopted during previous shutdowns so you know what vaccination and mask policies were or are currently in place. Remembering where you’ve been can better enable your business to adapt to whatever new guidelines may require. Contractors and sub-contractors who are concerned that the future guidelines are too broad should also begin to undertake efforts now to lobby the administration on the appropriate limitations of its promised future guidelines. The arguments related to the consequences of too heavy limits on an economy close to recession may prove convincing for an administration already bloodied by the controversy over vaccination.

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