White House prepares for partial lift on federal contractor vaccine mandate ban

After a court ruling partially lifting the ban on the federal contractor COVID-19 vaccine mandate takes effect on Oct. 18, agencies will get details from the Safer Federal Workforce task force and the Office of Management and Budget on what comes next.

In anticipation of the “potential narrowing” of the current nationwide injunction on the mandate, the task force and OMB said on Oct. 14 that they will release guidance to agencies on how to handle vaccine protocols moving forward.

The steps that the White House outlined could lead to some agencies requiring contractors to be fully vaccinated if they have a federal contract, Executive Vice President for Policy at the Professional Services Council Stephanie Kostro told The Federal Drive. But some of the details of the guidance for agencies and federal contractors are undefined – for example, if the mandate would apply to all federally contracted employees, or only to select groups.

“It’s not clear what the next steps are and what contractors should do as a result … There’s a lot of wiggle room in what it means for contractors,” Kostro said.

In August, a federal appeals court overturned an injunction on the COVID-19 vaccine mandate for federal contractors. The initial court decision in Georgia created a nationwide ban on the mandate, but the appeals court determined that a nationwide ban is an overreach, and that it should only apply to the specific states or groups that are actually suing.

The decision from Aug. 26 was the only one dealing with a nationwide injunction, but it isn’t the only case at play. Other court rulings could additionally affect the implementation of the vaccine mandate, including one case in Kentucky that barred the mandate in the state, along with in Ohio and Tennessee. A case in Arizona prohibited the mandate in that state as well.

The decision to overturn the ban is separate from vaccine mandates for federal employees and military members, which are facing their own host of court cases.

After the nationwide ban lifts for the federal contractor vaccine mandate, the Biden administration will issue at least three separate rounds of guidance for agencies.

First, agencies will receive guidance from OMB about compliance with the injunctions, as well as whether they should include clauses implementing the vaccine mandate in future contracts. OMB will send an initial notification to agencies about their compliance.

OMB will then develop and review necessary updates to COVID-19 safety protocols at contractor worksites, including any changes to the vaccine mandate. The guidance based on those changes will contain a timeline for contractors and subcontractors to implement updates, which may include reinstating the vaccine mandate for some contractors.

OMB Director Shalanda Young will then review that second piece of guidance to determine if it promotes economy and efficiency for federal contractors. Her decision on the guidance will be published to the Federal Register.

Once Young makes that determination, OMB will provide a final round of guidance to agencies on timing and other factors to consider when enforcing contract clauses that implement the vaccine mandate. That guidance will exclude groups that are affected by applicable injunctions on the mandate.

Agencies should not take any steps to enforce the vaccine mandate until receiving all of the guidance, the task force said. And the phrasing of the task force’s update could lead to more questions about the mandate, too.

“‘Should’ versus ‘shall’ – I just wonder what the contracting officers are thinking about this language,” Kostro said.

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