On September 9, President Biden signed Executive Order 14042 (Ensuring Adequate Safety Protocols for Federal Contractors) (“Federal Contractor Mandate”). The Federal Contractor Mandate required covered parties who contract with the federal government to comply with COVID-19 safeguards in the workplace. These safeguards applied to all covered federal contractors and flowed down to subcontractors.

The Federal Contractor Mandate required:

• COVID-19 vaccination of all covered contractor employees, except where the employee was legally entitled to an accommodation; 
• Compliance with certain masking and physical distancing guidelines; and
• Designation of an individual to coordinate of workplace safety efforts.

Several states challenged the enforceability of the Federal Contractor Mandate, arguing that Congress did not clearly authorize the issuance of this type of mandate. In late November, the Federal Contactor Mandate was blocked through litigation in Kentucky, Ohio and Tennessee.

On December 7, a federal court in Georgia also issued a nationwide injunction halting enforcement of the Federal Contractor Mandate throughout the country.

What Does This Mean for Businesses Who are Federal Contractors or Subcontractors?

As the litigation proceeds through appellate courts, covered federal contractors and subcontractors are left to speculate what this could mean for their policies and requirements in the future. There are presently no compliance obligations for federal contractors or subcontractors under the Federal Contractor Mandate. However, private companies still have the right to mandate that their employees be vaccinated against COVID-19, as long as they provide exemptions for sincerely held religious beliefs and medical disabilities.

What Now?

If they haven’t already, businesses should still prepare and implement a COVID-19 prevention policy that models the latest guidance from the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) on how to prevent the spread of COVID-19. Any standard prevention policy should include safety protocols, as well as isolation and quarantine protocols.

Compliance obligations surrounding vaccine mandates continue to change as various government agencies and courts grapple with the legal issues these mandates present. Businesses should continue to monitor the latest developments on COVID-19 compliance to ensure they are abreast of current obligations and risks.