A long-awaited decision from a federal appeals court just decided that some – but not all –federal contractors must comply with the federal contractor vaccine mandate in some — but not all — specific circumstances. Most significantly, the Eleventh Circuit Court of Appeals said it was “weary and wary” of the nationwide reach of the injunction that blocked the Executive Order mandate. But the August 26 decision also said the injunction that blocks enforcement of the mandate is valid for the seven states (and their relevant state agencies) that had joined the Georgia case as plaintiffs, as well as for members of the Associated Builders and Contractors (ABC). What do you need to know about this latest decision to determine your obligations?

Who Is Affected? 

This lawsuit arose in October 2021, when a group of states filed a complaint in Georgia alleging that President Biden’s Executive Order 14042 had exceeded his authority. That Executive Order required many (but not all) federal contractors to institute a vaccine mandate, although disability and religious exemptions were recognized. The mandate included a flow-down provision that also applied those federal contractor requirements to their subcontractors. You can read more about this mandate here.    

Multiple parties filed lawsuits in opposition to the mandate, with many also requesting injunctions to stop enforcement of the vaccine mandate while the lawsuits were pending. Most lawsuits are still pending. 

The critical lawsuit that is most relevant to the situation was filed by the state of Georgia and was joined by six other states: Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia. The nationwide construction contractor trade association, the Associated Builders and Contractors (ABC), also joined the lawsuit. 

In December 2021, a federal court in Georgia granted the request for an injunction and struck down the federal contractor vaccine mandate. That ruling remains firmly in place for those seven states and their state agencies and members of the ABC.

Thus, if you have federal subcontracts that flow through those states or the ABC, you need not fear enforcement of a federal contractor vaccine mandate as it is enjoined in those circumstances.

Does This Order Mean You Are Required to Follow the Federal Contractor Vaccine Mandate?

The federal court in Georgia had granted the nationwide injunction because the ABC has members across the U.S. That court applied the standards used for injunctive relief (the plaintiffs’ likelihood of success on the merits of the underlying action, whether irreparable injury will occur if no injunction issues, and a combination of the impact on the public interest if the harm caused by the threatened injury outweighs the harm caused by the injunction itself). 

On August 26, the Eleventh Circuit Court of Appeals, to which the nationwide injunction had been appealed, noted that the Court was both “weary and wary” of attempts to acquire nationwide relief. Instead, it said that the court both could and should provide more narrow or tailored injunctive relief. The Eleventh Circuit affirmed the injunction itself — but only for parties actually named in the lawsuit. 

Consequently, if you are a federal contractor covered by the E.O. 14042 vaccine mandate and you have contracts with one of the seven states identified or you are a member of the Associated Builders and Contractors, the federal contractor vaccine mandate will not be enforced for your operations related to those contracts. In addition, the federal government is prohibited from considering a bidder’s compliance with the mandate when deciding whether to grant a contract to a plaintiff or to a nonparty bidder. 

Are There Any Exceptions to the Federal Contractor Vaccine Mandate Requirements?

In addition to the prior medical, disability, and religious exemptions created in the Executive Order establishing the vaccine mandate policy, the August 26 order sets up a few additional carve-outs.

The Court said that, for the other 43 states, the federal government is no longer prevented from enforcing the mandate in new and existing procurement contracts between the federal government and nonparties. Further, the federal government may consider compliance with the vaccine mandate in the selection process following solicitations in which no plaintiff state participates as a bidder.

What Should You Do to Determine If or How This Decision Affects You?

• First, you need to review your contracts to determine if you have contracts with any of the seven plaintiff states (or if you are a member of the ABC).
• If so, then do those state contracts include flow-down provisions suggesting that the state contracts that your work supports are necessary for the performance of a federal contract?
  • If yes, then you likely need not comply with the federal contractor vaccine mandate at this time.
  • If no, then you need to comply with the federal contractor vaccine mandate, assuming you have determined that you are covered by Executive Order 14042.

What’s Next?

The August 26 decision used an analysis very similar to the analysis used by the U.S. Supreme Court when it overturned the OSHA ETS vaccine requirements. The underlying validity of the Executive Order 14042 vaccine mandate has not yet been decided by the Georgia court, the Eleventh Circuit Court of Appeals, or any other court. However, some movement in this area may signal that other courts with similar pending actions may also take actions now that the issue has resurfaced.

In the meantime, federal contractors continue to face their “routine” affirmative action compliance requirements. Moreover, you should be prepared for the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) gearing up for even more aggressive enforcement activity following its institution of the new contractor certification portal and a continued interest in pursuing compensation disparities. Further, there continue to be rumors of a renewed interest in pay data and hours worked data collection as we had seen with the Component 2 EEO-1 reports a few years ago. Not to mention that multi-establishment federal contractors that filed EEO-1 reports are now determining whether they want to object to the proposed disclosure of the Type 2 EEO-1 reports pursuant to a Freedom of Information Act request. Clearly, the compliance requirements for the federal contractor community do not appear to be dwindling.