Mask up, contractors!

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Constangy, Brooks, Smith & Prophete, LLP

Well, not yet, but possibly soon.

Remember the nationwide injunction from Georgia that put a halt to the federal contractor vaccine requirements? Well, in addition to appealing that decision to the U.S. Court of Appeals for the Eleventh Circuit, the government requested the lower court to clarify its ruling. Specifically, the government asked whether the nationwide injunction applied to the entirety of Executive Order 14042 or only to the portion mandating vaccination by contractor employees.

In response to this request, the court issued another order on January 21. U.S. District Court Judge R. Stan Baker declined to clarify his prior order, stating as follows:

“[T]he answer to the inquiry is evident from the language the Court used – as well as language the Court noticeably did not use – in issuing the injunction. The Court stated, ‘Defendants are ENJOINED . . . from enforcing the vaccine mandate. . . .’ 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 . . . 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.

(Emphasis in original).

So, Judge Baker’s denial of the government’s request to clarify his prior order actually clarified that the federal government is enjoined only from enforcing the vaccine mandate. This opens the door for the government to enforce the remaining provisions relating to masking, physical distancing, and the appointment of a COVID-19 safety coordinator in jurisdictions not subject to another preliminary junction.

Other preliminary injunctions relating to Executive Order 14042 are currently in effect as follows:

  • The U.S. District Court for the Eastern District of Kentucky enjoined enforcement of “the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.”
  • The U.S. District Court for the Eastern District of Missouri enjoined enforcement of “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.”
  • The U.S. District Court for the Western District of Louisiana enjoined enforcement of “the Task Force Guidance and FAR memo in any contract, grant, or any other like agreement by any other name . . . between the Plaintiff States [Louisiana, Mississippi, and Indiana] or their agencies and the national government.”
  • The U.S. District Court for the Middle District of Florida enjoined enforcement “of Executive Order 14042” in any covered contract in the state of Florida.

Noticeably, the language used by the district courts in Kentucky and Missouri is nearly identical to that of the Georgia court. This could signify that the scope of these injunctions is similarly limited to the vaccine mandate and not the other requirements of Executive Order 14042. The verbiage used by the courts in Louisiana and Florida, however, clearly prohibit enforcement of any part of the Executive Order.

Despite the January 21 Order by Judge Baker, the Safer Federal Workplace Task Force has not changed the notice on its website, which states as follows:

Regarding Applicable Court Orders and Injunctions: The Office of Management and Budget has issued guidance on implementing requirements of Executive Order 14042 while ensuring compliance with applicable court orders and injunctions, including those that are preliminary and may be supplemented, modified, or vacated, depending on the course of ongoing litigation.

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.

Currently Excluded States and Outlying Areas: All of the United States and its outlying areas, including:

1. The fifty States;

2. The District of Columbia;

3. The commonwealths of Puerto Rico and the Northern Mariana Islands;

4. The territories of American Samoa, Guam, and the United States Virgin Islands; and

5. The minor outlying islands of Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Atoll.

Thus, the government continues to represent that it is not currently enforcing any aspect of Executive Order 14042 in any jurisdiction. In light of the "non-clarification clarification" made by Judge Baker, however, contractors are advised to monitor the Task Force website for future updates regarding compliance measures that could be mandated again.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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