After several Federal District Courts issued injunctions against the federal contractor vaccine mandate in December 2021, the Federal Government issued guidance fully suspending its enforcement of the federal contractor mandate. Despite the guidance, the future of the federal contractor vaccine mandate continued to remain in a state of limbo. This was best demonstrated two weeks ago when the Ninth Circuit sided with the Federal Government by lifting the district court’s preliminary injunction of the federal contractor vaccine mandate. The Ninth Circuit’s decision created a split with the Fifth, Sixth, and Eleventh Circuits that have enjoined the mandate. This Circuit split was likely headed to the United States Supreme Court.
On May 1, 2023, all of this changed. The Biden Administration announced its plan to end its federal contractor vaccine mandate on May 11, 2023, the same day the public health emergency ends. Accordingly, the Administration plans to issue an Executive Order “rescinding the vaccination requirement for federal employees and COVID-19 safety protocols for federal contractors, effective at 12:01 am on May 12, 2023.” For Federal Contractors | Safer Federal Workforce. Until then, the guidance suspending the enforcement of the federal contractor mandate remains in effect.
This should be the end of the federal contractor vaccine mandate; however, we will know more by May 11, 2023. Stay tuned for further developments.
Since December 2021, after a Federal District Court for the Southern District of Georgia issued a nationwide injunction against the federal contractor vaccine mandate, compliance with the federal contractor vaccine mandate has been in limbo. Many hoped that, on appeal, the Eleventh Circuit would bring some clarity to vaccine requirements. Unfortunately, that is not the case. On August 26, 2022, the Eleventh Circuit agreed that a preliminary injunction was warranted, however the Court narrowed the applicability of the injunction. The court held that the injunction should only apply to the specific plaintiff-states and trade associations in the case, and should not “extend nationwide and without distinction to plaintiffs and non-parties alike.” Georgia v. President of the United States, No. 21-14269 (11th Cir. Aug. 26, 2022).
The Eleventh Circuit agreed with the lower court that a preliminary injunction was warranted, stating that while “Congress crafted the Procurement Act to promote economy and efficiency in federal contracting, the purpose statement does not authorize the President to supplement the statute with any administrative move that may advance that purpose.” Therefore, the Court held that “the President likely exceeded his authority under the Procurement Act when directing executive agencies to enforce” the vaccine mandate.
Lawsuits challenging the Biden Administration’s many vaccine mandates have changed the compliance landscape over the last few months. This post summarizes the current status of the four major mandates:
Occupational Safety and Health Administration (“OSHA”) mandate;
Healthcare Worker mandate;
Federal Employee mandate; and
Federal Contractor mandate.
Spoiler alert: The Federal Contractor mandate–which has caused the most significant confusion for Government contractors since its issuance–still does.
1. OSHA Mandate
OSHA’s Emergency Temporary Standard (“ETS”) required that all employees of employers with 100 or more employees either be fully vaccinated or wear a mask and submit to weekly COVID‑19 testing. On January 13, 2022, the Supreme Court upheld a preliminary injunction of the OSHA mandate, finding that it likely exceeded OSHA’s authority.
Status: Withdrawn (OSHA announced that it was withdrawing the ETS on January 26, 2022).
Yesterday the U.S. District Court for the Southern District of Georgia issued a preliminary injunction against enforcement of Executive Order (“EO”) 14042, under which prime contractors and subcontractors are required to ensure that all of their employees working “on or in connection with” covered federal contracts are fully vaccinated against COVID-19 (“Vaccine Mandate”). The order was issued in a lawsuit filed by the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia; governors of several of those states; and various state agencies that challenged the Biden Administration’s authority to issue the Vaccine Mandate. In its decision, State of Georgia, et. al. v. Biden, No. 1:21-cv-163, the court agreed with the plaintiffs’ argument that the Administration improperly relied on the Federal Property and Administrative Services Act (“FPASA”) to issue the Vaccine Mandate, concluding that the FPASA’s authorization for the President to impose policies to promote economy and efficiency in procurement did not extend to polices focused primarily on public health.
Blank Rome LLP and the National Defense Industrial Association (“NDIA”) Delaware Valley Chapter are pleased to present this new live webinar on Monday, December 6, 2021, from 12:00 to 1:00 p.m. EST.
The rules and guidance around the federal contractor COVID-19 vaccine mandate are changing by the day. Please join Blank Rome’s Government Contracts and Labor & Employment attorneys for timely analysis of what federal contractors need to be prepared, including an in-depth discussion of:
Latest guidance: What do prime contractors need to know to comply?
Which of my employees are covered by the mandate?
Does the mandate apply to subcontractors?
How do I deal with exemption requests?
What should I do if my workforce is not fully vaccinated?
Brian S. Gocial, Partner, Government Contracts, Blank Rome LLP, and Partner and Member of the Board, NDIA Delaware Valley Chapter
The National Defense Industrial Association drives strategic dialogue in national security by identifying key issues and leveraging the knowledge and experience of its military, government, industry, and academic members to address them. You can learn more about them on their website.
QUESTIONS? Please contact Alena Leon, Business Development Consultant.
Earlier today, November 4, 2021, the White House issued a fact sheet addressing its vaccination policies, including the government contractor mandate under EO 14042. Three key points stand out: (1) the compliance deadline for “full vaccination” status will be extended from December 8, 2021, to January 4, 2022; (2) the Occupational Safety and Health Administration (“OSHA”) vaccine rule for larger employers (which may permit weekly testing in lieu of vaccination) will not apply to workplaces covered by the federal contractor mandate; and (3) the Government continues to take the position that its mandates will preempt conflicting state or local laws. The full press release can be found at Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies.
How does this new guidance impact government contractor compliance with EO 14042?
Most notably, the guidance extends the deadline for full vaccination status for covered contractors from December 8, 2021, to January 4, 2022. Covered contractor employees should receive their final vaccine dose by the new January 4, 2022, deadline.
Yesterday, November 1, 2021, the Safer Federal Workforce Task Force issued significant new guidance for contractors implementing vaccine mandates. The two key takeaways are: (1) contractors are not required to terminate unvaccinated employees immediately when the mandate goes into effect on December 8, and (2) federal agencies should not terminate contracts if a contractor is actively working toward compliance, even if the contractor faces challenges to achieving full compliance. The full updated FAQ is available on the Safer Federal Workforce Task Force website.
Are contractors still required to mandate vaccination by December 8?
Yes, covered contractors are still required to mandate that employees get vaccinated by December 8. However, rather than terminate noncompliant employees after the December 8 deadline, contractors should “determine the appropriate means of enforcement” for their employees.
Texas Governor Greg Abbott just raised the stakes in the inevitable tide of litigation about President Biden’s COVID-19 vaccine mandates by issuing an Executive Order banning vaccine mandates in Texas. We expect other states to follow suit. This raises important questions for federal contractors, who are working against the clock to ensure compliance with the new vaccine mandate applicable to most federal contracts by December 8, 2021 (see our most recent blog post about the details of the mandate, Government Contractor Vaccine Mandate FAQ: Status of Class Deviations and Accommodations Process).
It has been a busy week on the federal contractor COVID-19 vaccine mandate front. We answer questions below about the new class deviations that should start showing up in new contracts and solicitations, and key open issues on exemptions and coverage.
Where do things stand right now?
The Executive Order (“EO”) contemplated formal FAR amendments to be published by October 8, 2021. That date looks like it will slip. The open FAR Case shows an Ad Hoc Team has been tasked with drafting a FAR rule, with a report due on November 17. In the interim, both the Civilian and Defense Agency Acquisition Councils issued class deviations (here and here, respectively) implementing the EO. The deviations largely mirror the September 24, 2021, guidance.
At the end of July 2021, the Biden administration announced that, in addition to federal government employees, onsite federal contractor employees will be required to attest to their COVID-19 vaccination status. Visitors to federal buildings or federally controlled indoor workspaces and other individuals interacting with the federal workforce also will be required to submit a signed Certification of Vaccination form.
Any onsite contractor employee or visitor who declines to respond or responds that they are not fully vaccinated must (i) wear a mask regardless of the level of community transmission; (ii) physically distance; and (iii) provide proof of having received a negative COVID-19 test from within the previous three days if not enrolled in the applicable agency’s testing program. Federal agencies are required to establish a weekly or twice-weekly testing program for individuals not fully vaccinated. In addition, all onsite contractor employees and visitors, even those fully vaccinated, will be required to wear a mask in areas of high or substantial transmission.