Court Enjoins Vaccine Mandate Nationwide: The Practical Implications for Federal Contractors

On December 7, 2021, the United States District Court for the Southern District of Georgia (District Court) issued a nationwide preliminary injunction preventing the federal government from enforcing Executive Order (EO) 14042, which includes the vaccine mandate for federal contractors, during the pendency of legal proceedings. The District Court’s order, available here, follows a decision last week enjoining enforcement of EO 14042 in Kentucky, Ohio, and Tennessee. PilieroMazza’s Labor & Employment Group addresses what government contractors should know in light of the District Court’s order to halt the vaccine mandate.

1. History. To recap, on September 9, 2021, President Biden issued EO 14042 announcing that the federal government would include in new contracts, contract extensions, and the like, a provision requiring federal contractors to comply with guidance issued by the Safer Federal Workforce Task Force (Task Force). Shortly after EO 14042 was released, on September 24, 2021, the Task Force issued guidance requiring covered contractors to ensure covered employees were vaccinated (originally by December 8, 2021, then by January 18, 2022, in amended Task Force guidance) and requiring implementation of workplace safety measures. The District Court order placed enforcement of these requirements on hold.
2. Be Prepared. Covered contractors should be prepared to maintain compliance with EO 14042 in the event the preliminary injunction is lifted or EO 14042 is upheld. Preliminary injunctions are not final decisions. They are simply court orders designed to preserve the status quo by preventing a party to litigation from acting until a final decision is made. In other words, EO 14042 is still waiting in the wings until the case at issue is adjudicated or a court of appeals lifts the stay.
3. Fate of EO 14042. Although preliminary injunctions are not final decisions, they often signal that the District Court is concerned that the federal government will not prevail. In evaluating this factor, the District Court found that the federal government was unlikely to succeed on the merits, in part because “EO 14042’s directives and resulting impact radiate too far beyond the purposes of the Procurement Act and authority it grants to the President.” That said, preliminary injunctions are often vacated on appeal, and an appellate court may not agree with the District Court. Indeed, the appellate court that would review this decision, the Court of Appeals for the Eleventh Circuit, may take a different approach to this case than the District Court given its December 6, 2021, order declining to grant an injunction that would halt enforcement of the Centers for Medicare and Medicaid Services’ attempt to impose vaccine requirements on staff at facilities certified to participate in Medicaid and Medicare, albeit on different grounds.

4. What Should Federal Contractors Do Now? The federal government is now prohibited from enforcing EO 14042 during the pending litigation. It is unclear whether the District Court’s injunction prohibits contracting officers from incorporating the required Federal Acquisition Regulation (FAR) clauses into contracts going forward or whether it only prohibits enforcement of the FAR clause. If a contracting officer seeks to incorporate the required FAR clause into a contract during the injunction, federal contractors could certainly argue that the District Court’s order prohibits both incorporation and enforcement. Regardless, nothing in the order prevents federal contractors from continuing to implement and enforce vaccine mandates at their own discretion.

   Federal contractors should consult with legal counsel regarding certain state law prohibitions on vaccine mandates and expanded accommodations before continued implementation of EO 14042 in those states. In any case, federal contractors should be prepared to comply with EO 14042 in the event the preliminary injunction is lifted. It is unclear whether the Task Force guidance will be updated to extend the deadline for compliance.

The legal landscape around the federal contractor vaccine mandate continues to evolve. PilieroMazza’s Labor & Employment Group is monitoring the situation and is available to help companies navigate compliance and related pitfalls. Should your company need updated vaccination policies or simply have a question regarding EO 14042, please do not hesitate to reach out.