For those following the ever-developing story on the COVID-19 Safety Protocols for Federal Contractors, you will know that one of the three main components of the Safer Federal Workforce Task Force’s (“the Task Force”) Guidance, which covered contractors are required to comply with, through the incorporation into their Federal contracts or subcontracts of a FAR (or supplementary acquisition regulation) deviation clause, was a broad vaccination mandate for covered contractor employees. This included all full or part-time employees working on or in connection with (defined VERY broadly) a covered contract, as well as any employees working at a covered contractor workplace, regardless of whether they worked on federal contracts or not. Though the original deadline for “full vaccination” was December 8, it was later extended; all covered contractor employees were to have their last dose no later than January 4/be fully vaccinated by January 18. (Readers will remember that the other two components related to masking and physical distancing, and the designation of a COVID-19 coordinator. Covered contractors were also required to flow down the deviation clauses to their subcontractors). Further detail about Guidance, the underlying executive order, and some of the previous changes to the Guidance is available in our previous coverage here (addressing the Original guidance and the background relating to same, including the Executive Order that started it all) and here (changes to the Guidance and related concerns).
On Tuesday, December 7, a Federal Judge in United States District Court for the Southern District of Georgia blocked enforcement of the vaccination mandate, at least for now, as part of the case The State of Georgia et al. v. Biden et al., 1:21-cv-163. An earlier Kentucky decision (Commonwealth of Kentucky et al. v. Biden et al., 3:21-cv-00055, before United States District Court for the Eastern District of Kentucky) blocked the vaccine mandate, but only as it related to covered contracts in Kentucky, Ohio, and Tennessee. In contrast, the Georgia decision now blocks the enforcement of the mandate nationwide. Seemingly, this was due to the involvement in the case, as intervenors, of the trade association Associated Builders and Contractors Inc. (“ABC”), who have members across the country. The Georgia decision stated:
“… given the breadth of ABC’s membership, the number of contracts Plaintiffs will be involved with, and the fact that EO 14042 applies to subcontractors and others, limiting the relief to only those before the Court would prove unwieldy and would only cause more confusion. Thus, on the unique facts before it, the Court finds it necessary, in order to truly afford injunctive relief to the parties before it, to issue an injunction with nationwide applicability.”
The Court found that the Plaintiffs (the state of Georgia, joined by several other states) were likely to prevail on their claim that President Biden “exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act when issuing Executive Order 14042” (i.e. the Executive Order underlying all of the COVID-19 Safety protocols for Federal Contractors. See original blog post on the EO here). Accordingly, the Court ordered that:
“… that Defendants are ENJOINED, during the pendency of this action or until further order of this Court, from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.”
As the Georgia decision related to a preliminary injunction, this is not a permanent ban. There will be further litigation on this point, and undoubtedly further developments and changes as this case progresses. We will keep you posted.
As of the time of writing, no updates concerning this matter had been made on the Task Force website. It will be interesting to see how the administration responds, and how agencies are directed to act. In response to the Kentucky decision, the Department of Defense (DoD) issued an updated class deviation ordering defense agencies to cease application of the EO for contracts and solicitations that could be performed (in whole or in part) in the states of Kentucky, Ohio, and Tennessee. It is likely that the DoD could now instruct defense agencies to halt application altogether, but it is not yet certain; what will happen with non-defense agencies is equally unclear.
What is clear is that this remains a constantly-developing story, and there remains plenty of room for misunderstanding. From what we have seen thus far, dealing with modifications, etc., many COs were already confused relating to the EO and the Guidance, it seems likely to me that there will be even further confusion now.
[View source.]
