REQUIREMENT FOR CONTRACTOR VACCINATION STILL HELD IN ABEYANCE
The Office of Management and Budget (OMB) took the only responsible action it could late last week when it issued a directive to all acquisition officials advising them to not enforce any contract clauses related to the Executive Order requiring contractors to be vaccinated for COVID 19. Despite movement on one legal effort that narrowed the scope of a nationwide injunction, multiple other court cases are still pending at various appellate courts across the country. As such, any move by OMB to try and enforce the mandate now would result in a hodgepodge of geographic differences and contract types. The technical term for what would happen had OMB attempted to move forward now is “mess”. Notably, however, OMB left the door open to enforcement later on and two pieces of additional guidance are expected shortly. Contractors should track those statements closely. In the meantime, while no effort should be made to enforce the contract clause, it will still appear in new and modified government contracts. Cases before other appellate courts will have to be decided and, if they differ from that of the 11th Circuit, the issue may likely finally be decided by the Supreme Court. In addition, the President could rescind the Executive Order (14042), or a new Congress could vote to withhold the use of appropriated funds to enforce it. Contractors have absolutely not heard the last of the vaccine mandate issue. While the requirement is down for now, it is not 100% out. Stay tuned.