United States: EO 14042: OMB Guidance Keeps Enforcement On Hold "At This Time"

On October 19, 2022, the U.S. Office of Management and Budget (OMB) published its first set of interim guidance for agencies regarding the Federal Government's enforcement of Executive Order 14042 ("EO 14042"). In addition to reaffirming the Federal Government's decision not to enforce any contract clauses implementing EO 14042, OMB's guidance directs agencies not to include an implementing clause in any new contracts and solicitations.

The OMB's guidance follows an October 14, 2022, update from the Safer Federal Workforce Task Force ("Task Force"), which indicated that the Task Force and OMB will issue at least three guidance documents following the U.S. Court of Appeals for the Eleventh Circuit's issuance of its mandate significantly narrowing the scope of the nationwide preliminary injunction of the EO 14042 vaccine mandate. Consistent with OMB's guidance, the Task Force also published a complementary update on the same day.

OMB's first set of interim guidance directs agencies to take the following actions:

• For existing contracts that contain a clause implementing EO 14042: "Agencies should continue NOT to enforce any contract clauses implementing requirements of Executive Order 14042—regardless of party or location—until future OMB guidance discussed above indicates that contracting agencies should provide written notice to contractors reinstating enforcement of those clauses and then resume enforcement" (emphasis in original).
• For existing contracts that do not include a clause implementing EO 14042: Agencies "should NOT at this time modify the contract to insert" an implementing clause, even when renewing, extending the term of, placing a new order against, or exercising contract options (i.e., "new" contracts as defined in the Task Force's prior—and now largely defunct—guidance) (emphasis in original).

• For new solicitations: Agencies "should NOT at this time" include a clause implementing EO 14042, including solicitations for new orders under existing indefinite-delivery indefinite-quantity contracts that contain an implementing clause.

What does this mean? Federal contractors and subcontractors need not worry about complying with the requirements of EO 14042 in either new or existing contracts "at this time," except when accessing Federal buildings or Federally controlled facilities, per Federal agency workplace safety protocols, which have consistently remained in effect. However, Federal contractors and subcontractors should still get their houses in order in anticipation of the second and third sets of OMB guidance, as discussed in our prior alert.

Also following the Eleventh Circuit's mandate, on October 20, 2022, the U.S. District Court for the Southern District of Texas denied the year-old motion for preliminary injunction filed by the State of Texas, which sought to block the enforcement and implementation of EO 14042. After reviewing supplemental briefs, the district court found that Texas failed to demonstrate the imminent harm necessary for a preliminary injunction. In reaching this decision, the court relied on the OMB's first set of interim guidance and the complementary Task Force guidance, both of which directed agencies not to enforce or incorporate a clause implementing EO 14042 into any new and existing contracts. This decision serves as a warning to new and existing litigants alike that any attempt to obtain a preliminary injunction of EO 14042 may be stopped dead in its tracks, at least "at this time."

Thomas Lee, a Law Clerk in our Washington, D.C., office, contributed to the writing of this alert.