OMB offers new guidance on federal contractor vaccine mandate, as compliance ticks up for feds

The Biden administration said it won't enforce the provisions of the president's federal contractor vaccine mandate while a nationwide preliminary injunction is...

The Biden administration offered more details Thursday for federal contractors tracking the multiple legal challenges to the president’s vaccine mandate, while reporting a slight increase in the number of executive branch employees who have complied with their agency’s own requirements.

Agencies will not enforce the provisions of the president’s federal contractor vaccine mandate while a nationwide preliminary injunction is in place, the Biden administration said.

Specifically, the government won’t enforce those clauses embedded in existing contracts where the work is performed inside the United States or an outlying area and is subject to a recent court order, according to a brief update to the Safer Federal Workforce Task Force issued Thursday.

Currently, all 50 states, the District of Columbia, Puerto Rico, the Mariana Islands and U.S. territories are subject to court orders.

“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,” the task force said.

Additional guidance from the Office of Management and Budget goes into further detail.

For existing contracts that don’t contain clauses detailing the vaccine mandate, agencies shouldn’t try to add one, OMB said.

For existing and future solicitations, including solicitations for new orders issued under an indefinite delivery/indefinite quantity contract, OMB said agencies shouldn’t add a clause implementing the vaccine mandate. If the solicitation already had those clauses, agencies should remove them, OMB said.

In addition, OMB said agencies must inform contractors they will take no action to enforce the federal contractor vaccine mandate when exercising an option, issuing a new option or extending the term of a contract.

The new guidance comes after a federal judge in Georgia blocked the Biden administration’s federal contractor vaccine mandate on Tuesday. Judge Stan Baker sided with attorneys general in Georgia and several other states, as well as the Associated Builders and Contractors (ABC), a construction trade association that joined the lawsuit later as an intervenor. Since ABC has members across the country, Baker issued a nationwide injunction.

While agencies won’t take any specific action to enforce the federal vaccine mandate, contractors working onsite in government buildings or government-controlled facilities still have to follow COVID-19 safety protocols, the administration said.

Tuesday’s ruling from the southern district in Georgia was the second significant decision on the administration’s federal vaccine mandate for contractors. The legal reasoning behind the Georgia decision mirrored that in a similar preliminary injunction a Kentucky judge issued last week. The Kentucky injunction, however, applied to just three states: Kentucky, Ohio and Tennessee.

“Both court orders are preliminary and may be supplemented, modified or vacated, depending on the course of ongoing litigation,” OMB wrote. “Given the uncertainty surrounding the court orders, OMB has formulated this updated guidance to be applicable even if the existing court orders change or new orders are issued.”

The judges in both cases found the president has wide discretion to order to make unilateral changes to federal procurement policy, but only if those changes have a “sufficiently close nexus” to economy and efficiency in federal contracting. But also like in the Kentucky case, the Georgia court found public health mandates don’t meet that test.

The Biden administration appealed the Georgia decision Thursday in the U.S Court of Appeals for the 11th Circuit.

There are other legal challenges pending in other courts around the country. Texas officials have also asked for injunctive relief from the federal contractor vaccine mandate . A decision on that case is expected in the coming days.

Vaccination rate ticks up slightly among federal employees

At the same time, more federal employees have taken steps to comply with the administration’s federal employee vaccine mandate, the Office of Management and Budget said Thursday.

Some 92.5% of federal employees had at least one vaccine dose as of Dec. 8. All told, some 97.2% of the workforce is at least partially vaccinated or has a medical or religious exception pending or approved, OMB said.

The latest data does reflect a slight bump in vaccination and compliance. Two weeks ago, OMB said 92% of federal employees were partially vaccinated and 96.5% of the workforce had complied with the mandate through vaccination or submitting an exception request.

(This chart reflects the new data the Office of Management and Budget released on Dec. 9, 2021. It reflects vaccination and compliance rates from the day prior.)

The U.S. Agency for International Development still has the highest vaccination rate, with 98.1% of the agency’s employees having at least one dose, according to the new data.

The Agriculture Department continues to have the lowest vaccination rate, though it made noticeable progress during the last two weeks. Some 88.1% of USDA employees have at least one dose, slightly higher than the 86.1% rate the department reported in late November.

The Social Security Administration appears to have made the most progress vaccinating its employees in the last few weeks. Some 87.7% of SSA employees had at least one dose in late November. Today, 90.3% of the agency’s employees are at least partially vaccinated, according to OMB data.

USAID also has the smallest percentage of employees with pending or approved exception requests, while USDA has the highest. The National Science Foundation has the highest overall compliance rate at 99.9%.

OPM and OMB have encouraged agencies to delay the toughest penalties, which might first include an unpaid suspension and then firing, until January, a message it reiterated Thursday.

Agencies should instead continue their education and counseling efforts with employees who haven’t yet complied with the federal employee vaccine mandate. They might also consider sending unvaccinated employees a letter of reprimand, OMB reminded agencies Thursday.

The administration said federal employees will continue to submit vaccination information to their agencies in the coming days and weeks, and agencies will review medical and religious exception requests.

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