OMB Takes Steps to Revive COVID-19 Safety Requirements Following Lift of National Ban
On October 19, 2022, the Office of Management and Budget (OMB) released previously promised guidance (covered here) regarding the implementation of Executive Order (E.O.) 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. In light of the Eleventh Circuit lifting the national injunction on enforcement of the E.O.'s vaccination and workplace safety requirements for parties not named in that particular case, the Safer Federal Workforce Task Force published OMB's new guidance and made promises to update its current guidance.
Regardless of the lift of the nationwide ban on October 18, 2022, agencies are directed not to: (1) take steps requiring covered contractors and subcontractors to come into compliance with the Task Force guidance and (2) enforce any contract clauses that implement the requirements of E.O. 14042. The Task Force has announced that it intends to update its COVID-19 safety protocols for covered workplace locations, including a timeline for the implementation of the requirements. In keeping with the requirements of E.O. 14042, OMB has also indicated that it will review the new guidance to determine whether it promotes "economy and efficiency in federal contracting" — the current subject of much controversy in the federal courts currently adjudicating the legality of the federal contractor COVID-19 vaccine mandate.
OMB's update provided some practical guidance to help contractors orient themselves in the ever-changing landscape of COVID-19 safety compliance:
- For existing contracts that contain a clause that implements E.O. 14042. Agencies should continue to abstain for enforcing the contract clause until future OMB guidance indicates that the agencies should provide written notice to contractors establishing enforcement of the clause, and then subsequently resume enforcement.
- For existing contracts that do not contain a clause that implements E.O. 14042. Agencies should not modify contracts to insert a clause effectuating the requirements of E.O. 14042, even when renewing, extending the terms of, placing an order against, or exercising an option under the contract.
- For solicitations (including solicitations for new orders under existing contracts). Agencies should not include the clause implementing the requirements of E.O. 14042 in new solicitations. Furthermore, if an agency is conducting a solicitation for a new order under an existing indefinite delivery/indefinite quantity contract that contains a clause implementing E.O. 14042, the agency should continue not to enforce the clause.
It is still uncertain how substantially the Task Force's new guidance will deviate from its previous guidance (covered here and here). In the interim, contractors should review their existing contracts and any solicitations they are competing for to better understanding the degree of compliance obligations they may be facing in the future, and to ensure that agencies are not attempting to enforce the E.O.'s requirements before OMB releases additional guidance. We will continue to monitor and report on the guidance related to the federal contractor vaccine mandate and workplace safety requirements as well as the requirements and timeline for compliance. If you have questions about the OMB's updated guidance or potential impact on your business as a federal contractor or subcontractor, please contact one of the Miller & Chevalier attorneys listed below:
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