Safer Federal Workforce Taskforce Issues New Guidance Related to Court Orders Halting Contractor Mandate

ACEC News / Advocacy

December 13, 2021

Safer Federal Workforce Taskforce Issues New Guidance Related to Court Orders Halting Contractor Mandate

By Dan Hilton

The Safer Federal Workforce Taskforce has issued the following guidance in light of ongoing litigation surrounding the federal contractor vaccine mandate, which can be found here. The court orders in both cases (nationwide and Kentucky) will be appealed to their respective courts of appeal, the U.S. Courts of Appeals for the 11th and Sixth Circuits. Ultimately, the question of the legality of EO 14042 likely will be petitioned to the Supreme Court. The guidance confirms that they will take no action to enforce EO 14042 until further notice. 

As always, contractors should still be prepared in the event that the injunction is lifted and EO 14042 can proceed, though likely at a later date established by the courts.  

Regarding Applicable Court Orders and Injunctions: The Office of Management and Budget has issued guidance on implementing requirements of Executive Order 14042 while ensuring compliance with applicable court orders and injunctions, including those that are preliminary and may be supplemented, modified, or vacated, depending on the course of ongoing litigation.

• For existing contracts or contract-like instruments (hereinafter “contracts”) that contain a clause implementing requirements of Executive Order 14042: 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 (hereinafter, “Excluded State or Outlying Area”). In all other circumstances, the Government will enforce the clause, except for contractor employees who perform substantial work on or in connection with a covered contract in an Excluded State or Outlying Area, or in a covered contractor workplace located in an Excluded State or Outlying Area.
• NOTE: 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.

In this blog post, the FoxRothschild law firm recommends a number of proactive steps that contractors should still take:

1. Continue to Perform All Contractual Obligations.
2. Approach Future Modifications with Caution and Keep Track of Time & Costs.
3. Maintain Flexibility and Be Nimble.
4. Communicate Up and Down the Chain.
5. Stay informed.

Dan Hilton is ACEC Director of Procurement Advocacy & International Affairs.

All comments to blog posts will be moderated by ACEC staff.