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Executive Order 14042 Will Not Be Implemented Or Enforced—Even After 11th Circuit Decision – Government Measures

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On August 31, 2022, the Biden administration updated its Safer Federal Workforce Task Force guidance on
the federal contractor COVID-19 vaccine mandate. According to the
new guidance, “the Federal Government will take no action to
implement or enforce Executive Order 14042. For existing contracts
or contract-like instruments (hereinafter ‘contracts’) that
contain a clause implementing requirements of Executive Order
14042, the Government will take no action to enforce the clause
implementing requirements of Executive Order 14042, absent further
written notice from the agency.” The updated guidance follows
a recent decision from the Eleventh Circuit
Court of Appeals that narrowed the scope of a preliminary injunction that had barred
enforcement of the federal contractor vaccine mandate

As of August 31, the Safer Federal Workforce Task Force website
also includes new guidance in the form of frequently asked
questions (FAQs) related to federal contractors and symptom screening, among other topics. For
example, the FAQs clarify that agencies will no longer symptom
screen individuals, including contractor employees working on-site
at an agency workplace; rather, “[s]ymptom screening can be
self-conducted and does not need to be verified by agency
personnel.” These new FAQs are in line with updated COVID-19 Workplace Safety Protocols issued by
the administration on August 17, 2022. In that document-which
preceded the decision of the Eleventh Circuit that narrowed the
Executive Order (EO) 14042 injunction-federal agencies were
instructed to “pause” requiring or requesting employees,
potential employees, and on-site contractor employees to provide
information about their COVID-19 vaccination status. As a result,
contractors are no longer required to use the government-wide Certification of Vaccination form.

Contractors may want to continue to monitor the Safer Federal
Workforce Task Force website for additional guidance about COVID-19
workplace safety protocols and the government’s plans to
enforce the federal contractor vaccine mandate.

Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice
will continue to monitor developments regarding legal
challenges to EO 14042 and will post updates in the firm’s Coronavirus (COVID-19) Resource Center and on
the firm’s Affirmative Action / OFCCP and Government Contractors blogs as additional
information becomes available. Important information for employers
is also available via the firm’s webinar and podcast programs.

For more information on guidance from the Office of Federal
Contract Compliance Programs (OFCCP), please join us for our two
upcoming webinars. The first, “OFCCP and the Never-Ending Saga of Compensation
,” will take place on Wednesday, September 14,
2022, from 2:00 p.m. to 3:00 p.m. ET. The speakers, T. Scott Kelly, Leigh M. Nason, and Lauren B. Hicks, will discuss the agency’s
controversial guidance suggesting federal contractors must perform
annual pay equity audits. Register here.

The second webinar, “What OFCCP’s Revitalized Enforcement Focus
Means for Federal Construction Contractors
,” will take
place on Thursday, October 6, 2022, from 2:00 p.m. to 3:00 p.m. ET.
The speakers, T. Scott Kelly, Christopher Near, and Morgan Pike Epperson, will discuss affirmative
action and non-discrimination obligations that come with the $1
trillion infrastructure bill signed by President Biden in 2021.
Register here.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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