Under President Biden’s Path Out of the Pandemic Plan, Executive Order (EO) 14042 was issued. The EO requires that all “covered” federal contractors/subcontractors be fully vaccinated against COVID-19 by January 18, 2022, except in cases of a medical or religious accommodation. On November 10, 2021, the Safer Federal Workforce Task Force made another round of updates to its Guidance for Federal Contractors and Subcontractors on implementing EO 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors.
What Is Key Highlight of the Latest Updated Guidance?
The main highlight of the updated guidance is the extension of the “fully vaccinated” deadline from December 8, 2021 to January 4, 2022, as stated in the White House Fact Sheet regarding the OSHA Emergency Temporary Standard (ETS) for which the purpose was to align the EO’s vaccination deadline date with the newly issued OSHA COVID-19 Vaccination and Testing ETS (for private employers with 100 or more employees) and the CMS Interim Final Rule (for covered agencies that receive Medicare and Medicaid funding).
The White House fact sheet specifically stated that employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose by January 4, 2022. However, the EO’s definition of “fully vaccinated” is two weeks after a last vaccine shot which makes the interpretation of the deadline under the EO to mean that employees must be fully vaccinated by January 18, 2022.
Recent Legal Developments
On November 30, 2021, a federal judge in the Eastern District of Kentucky preliminarily enjoined the EO, citing that “presidential authority is not absolute, and that President Biden exceeded his authority.” The preliminary injunction prevented the EO from being enforced against covered federal contractors/ subcontractors in Kentucky, Ohio, and Tennessee. But, on December 7, 2021, a judge in the Southern District of Georgia issued a preliminary nationwide injunction. Meaning, the federal government cannot enforce the requirements of the EO in any state until a final decision is made. In addition, both the OSHA ETS and CMS Interim Final Rule are facing legal challenges.
Next Steps for Employers
The Office of Management and Budget has issued guidance on the impact of the injunction, citing “the Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order.” The guidance is available on the Safer Federal Workforce Task Force website.
It should also be noted that federal agency COVID-19 workplace safety protocols for federal buildings and federally controlled facilities still apply in all locations. Contractor employees working onsite in those buildings and facilities must still follow federal agency workplace safety protocols when working onsite, including adhering to mask and physical distancing requirements.
Currently, covered employers are not required to comply with the EO, but they should consult with their legal counsel on whether to move forward with compliance efforts in the event the preliminary injunction is lifted so that they would have enough time to meet the January 18 deadline. Alternatively, federal contractors may still decide to voluntarily comply with the EO, as the injunction does not prohibit voluntary compliance, keeping in mind, any applicable state laws surrounding vaccine mandates.
For employers with contracts that include the compliance related language, it is recommended that they also reach out to the issuing agency for further directives.
We will continue to monitor this and provide additional information as it becomes available.