In an “update” that reads more like a teaser to a B Movie, the OMB on Friday advised that it will have more guidance on EO 14042 for us soon. What precipitated this official warning that more guidance would be forthcoming? Well, it seems that tomorrow (October 18, 2022) OMB expects the Southern District of Georgia to narrow the nationwide injunction prohibiting enforcement of EO 14042. This is the procedural step we’ve all been waiting for since the 11th Circuit issued its decision on August 26, 2022. In anticipation of the narrowed injunction, OMB announced it expects to release three new guidance documents in the near future:
- Direction to Contracting Officers on “whether” to include FAR 52.223-99 (Ensuring Adequate Covid-19 Safety Protocols For Federal Contractors) in new solicitations and contract documents.
- Revised safety protocols for covered contractor and subcontractor workplace locations, including an updated timeline for implementation.
- Enforcement guidance for Federal agencies.
Though OMB’s “update” provides only a sneak peek at what’s to come, it did include some interesting nuggets. Here are our takeaways:
- OMB describes the first forthcoming document as guidance on “whether” to include FAR 52.223-99 in new contracts/solicitations. However, we think the guidance will turn out to be when to include the FAR clause, rather than whether to include the FAR clause. As you may recall from our SheppardTracker, Contracting Officers will be able to enforce EO 14042 only in certain states, and therefore (theoretically) should include FAR 52.223-99 only in contracts where enforcement is not prohibited. Of course, contract administration at that level of detail would be a nightmare, and we wouldn’t be surprised if OMB tries to ease the burden on Contracting Officers by directing that the clause be included everywhere and leaving it to the contractors to figure out if it is self-deleting or not. It’ll be interesting to see what approach OMB recommends.
- The OMB notice states that updated safety protocols will be released soon, in addition to a revised implementation timeline. Interestingly, EO 14042 itself does not mandate that contractor employees be vaccinated – only OMB’s protocols include the vaccination requirement. Given the Biden Administration’s recent easing of Covid-19 restrictions, and the CDC’s relaxation of guidelines as more Americans have become vaccinated, it’s possible OMB materially alters the protocols released on September 24, 2021 (perhaps even to remove the requirement that contractor employees be vaccinated). This is the document we’re anxious to see.
- As to the timeline, in the original protocols released in September 2021, OMB gave contractors about 10 weeks to comply. Subsequently, OMB delayed the compliance deadline another 4 weeks to align with the OSHA ETS (remember that one?!). If OMB intends to rely on the existing protocols (and that’s a big “if”), we’d expect a similar timeline here. Of course, there are a number of procedural steps OMB must take even before releasing these three guidance documents, but factoring in time for those steps, we anticipate a compliance deadline in early 2023.
- Whatever the updated protocols end up requiring, OMB remains intent on enforcing the FAR clause against contractors to the extent it can. Interestingly, OMB noted it anticipates providing guidance to Federal agencies on the “timing and considerations” for issuing written enforcement notices to contractors. To us, that implies Contracting Officers will have some discretion in enforcing FAR 52.223-99, but that at least some enforcement is expected.
Importantly, until OMB releases all three documents, the status quo remains. Here’s the specific direction to Contracting Officers:
Until OMB issues the third guidance document described above, agencies should not: (1) take any steps to require covered contractors and subcontractors to come into compliance with previously issued Task Force guidance; or (2) enforce any contract clauses implementing Executive Order 14042.
So, where do we go from here? We understand a significant number of companies have eased (or even eliminated) internal vaccination requirements. Given the possibility OMB materially alters the existing protocols, we don’t think it makes sense to take any precipitous action just yet in any direction (e.g., reinstating a vaccination requirement or beginning to execute your 2021 EO 14042 compliance plan). The key here will be the updated protocols (the second document OMB says it soon will release) – once OMB releases these revised protocols, then contractors will be able to develop an updated compliance plan. Until then, it wouldn’t hurt to dust off your 2021 plan, assess the progress you made prior to the December 2021 injunction, as well as any actions taken by your company in the interim that may impact your compliance with EO 14042.
Also, although action seems imminent from the Southern District of Georgia, keep in mind that EO 14042 continues to be litigated in other courts across the county, and any modifications to those other injunctions will impact compliance with the FAR clause. We’re tracking the various dockets, and will keep you apprised as the (B Movie) saga continues to unfold.