Just when you didn’t think things could get any weirder, on Friday, January 21, 2022, the U.S. District Court for the Southern District of Georgia issued a ruling clarifying its prior EO 14042 injunction (currently on appeal to the 11th Circuit, and discussed previously here) by refusing to clarify the injunction. Yes, you read that right. Let us explain.
Following issuance of its nationwide injunction and subsequent appeal to the 11th Circuit, the U.S. Government moved the district court to clarify whether the injunction applied only to the vaccine mandate or to the entirety of EO 14042. According to the Georgia Court, its injunction was intended to enjoin only the vaccine mandate. In other words, it does not enjoin the masking or physical distancing requirements of the Executive Order.
The way the Georgia Court “clarified” its prior Order is a bit convoluted. After first finding it had jurisdiction to clarify its previous Order, even in light of the pending appeal, the Court went on to find that a clarification was not necessary here because the injunction already held the answer to the U.S. Government’s inquiry. According to the Georgia Court, its injunction was meant to apply only to the vaccine mandate, and to leave in place EO 14042’s masking and physical distancing requirements (discussed in greater detail in our EO 14042 Survival Guide).
So Where Does This Leave Us?
As of this blog, the Safer Federal Workforce Task Force has Guidance on its website that reads as follows:
“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, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order (hereinafter, ‘Excluded State or Outlying Area’). In all other circumstances, the Government will enforce the clause, except for contractor employees who perform substantial work on or in connection with a covered contract in an Excluded State or Outlying Area, or in a covered contractor workplace located in an Excluded State or Outlying Area.” (Emphasis added).
This is very flexible language, which can be read to say (a) the Government will not enforce its clauses in states subject to an injunction or (b) the Government will not enforce any requirement prohibited by an injunction. Since the masking and physical distancing requirements no longer are prohibited by the Georgia Court’s injunction, technically, the Task Force’s language can be read to permit enforcement of these requirements.
Leaving the Task Force Guidance aside for the moment and looking solely at the various injunctions, here is where things currently stand:
Georgia Order: Enjoins the vaccine mandate in all 50 states; does not enjoin the masking or physical distancing mandate in any state.
“While there was evidence before the Court indicating that other COVID-19 safety-related requirements were also established as a result of the Executive Order (i.e., masking and physical distancing requirements), the evidence and arguments presented to the Court in the parties’ briefs and at the hearing on the Motion for Preliminary Injunction focused almost exclusively on the vaccination requirement, and the Court’s Order on the Motion for Preliminary Injunction did not reference, discuss, or analyze any of the other COVID-19 safety-related requirements.”
Kentucky Order: Enjoins the “vaccine mandate” for all covered contracts in Kentucky, Ohio, and Tennessee; it is unclear whether it enjoins masking or physical distancing in those three states.
“The Government is ENJOINED from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.”
Florida Order. Enjoins all aspects of the Task Force Guidance (the vaccine mandate and masking/physical distancing) in all contracts “within Florida.”
“[T]he defendants are PRELIMINARILY ENJOINED from enforcing within Florida any contract clause requiring compliance with the COVID Safety Protocols for Federal Contractors described in Executive Order No. 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, 86 Fed. Reg. 50,985 (Sept. 9, 2021)….”
Missouri Order. Enjoins the vaccine mandate “in all covered contracts in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming”; it is unclear whether it enjoins masking or physical distancing in those states.
“Defendants are enjoined from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming.”
Louisiana Order: Enjoins all aspects of the Task Force Guidance (the vaccine mandate and masking or physical distancing) in contracts between Louisiana, Mississippi, or Indiana (or their agencies) and the U.S. Government. Note: this Order applies only to the States themselves, and expressly does not reach private contractors.
“[I]t is ORDERED that the Motion for Preliminary Injunction, Doc. 22, is GRANTED to enjoin the national government from enforcing the Task Force Guidance and FAR Memo in any contract, grant, or any other like agreement by any other name, whether for services or product and whether existing or new, between the Plaintiff States or their agencies and the national government.” (Emphasis added).
And, of course, the CMS Rule is in effect in all 50 states and the OSHA ETS is enjoined in all 50 states (as discussed previously here).
This means that contractors are left with pieces of a very jumbled up puzzle. To help visualize this jumbled up puzzle, we’ve created a jumbled up map, which you can find here.
Where Do We Go From Here?
In light of the ever changing federal vaccine landscape, we suspect most contractors will maintain the status quo for now — at least until the Task Force updates its Guidance. In other words, we suspect contractors will continue enforcing masking and distancing if they have been, and continue not enforcing masking and distancing if they have not been. That being said, in response to the Federal injunction against enforcement of the EO 14043 (Federal employee) vaccination mandate, the Task Force issued a statement on January 24, 2022 stating the protocols relating to masking, distancing, travel, testing, and quarantining remain in effect, even though the Government no longer can enforce the vaccination requirement. The Task Force could issue a similar statement with respect to EO 14042, permitting enforcement of the masking/distancing requirements for Federal contractors, but as of publication of this article, the Task Force had not yet done so. It’s hard to believe contracting agencies suddenly will start aggressively enforcing the masking and distancing mandates without warning, so continue monitoring for updated guidance.
Here are a few additional considerations contractors may want to keep in mind:
- While the current state of things is unclear, flowing down EO 14042 requirements to subcontractors at this time, especially if such efforts already have been paused, probably creates needless burden, hassle, and risk.
- None of the court orders enjoin enforcement of a private agreement between two contractors. Thus, if a contractor has accepted a flow down clause from a prime, the contractor still could be subject to various EO 14042 obligations, depending on how the flow down was written. In light of the multitude of injunctions, it’s probably worthwhile to review the clauses accepted and inventory which are operative and which are not.
- None of these Federal injunctions prohibit a contractor from voluntarily imposing masking/distancing restrictions on its workforce. As noted previously, however, any health/safety protocols you put in place must be consistent with applicable state and local laws.
- Contractors should keep their eyes on the Task Force Guidance page, including whether the Government will begin enforcing the masking/distancing requirements and continuing the rollout of the FAR/DFARS clauses. It will be interesting to see if the Task Force updates its current statement regarding the injunctions.
As federal contractors across the U.S. recalibrate their EO 14042 compliance plans, we’ll be monitoring the various courts of appeals (specifically, the 5th, 6th, 8th, and 11th Circuits) on whether they believe the President had the authority to issue EO 14042.