On Friday, October 14th, the Office of Management and Budget (OMB) and the Safer Federal Workforce Task Force (Task Force) issued some “clarifications” about the expected next steps for Executive Order 14042 – the federal contractor vaccine mandate – now that the longstanding nationwide injunction restricting enforcement of the E.O. has been narrowed by order of the Eleventh Circuit. That narrowing (to just the six States that were named parties to the legal challenge in Georgia v. Biden) took effect on October 18th. OMB and the Task Force suggested that we would see at least three new guidance documents now that the injunction is narrowed, including:
OMB would give notice to federal agencies about compliance with applicable injunctions, and also whether, where and when the new clause implementing Executive Order 14042 should be included in new solicitations and contracts.
The Safer Federal Workforce Task Force would update its COVID-19 guidance for covered contractor workplaces, including a timeline for implementation. Last week’s clarification specified that this “updated guidance [by the Task Force] will be issued following development and review by the Task Force, subject to the OMB Director’s approval and determination published in the Federal Register that the updated guidance promotes economy and efficiency in Federal contracting, in accordance with Executive Order 14042.”
After the updated Task Force guidance issues, and if the OMB Director makes a determination that implementation of the E.O. in some form continues to promote economy and efficiency in federal contracting , then OMB would provide additional guidance to agencies on timing and considerations for provision of written notice from agencies to contractors regarding enforcement.
On October 19th (the day after the 11th Circuit’s narrowing of the nationwide injunction took effect), OMB did issue one of the notices we were expecting. Continue reading →
In case anyone has forgotten, there are still a few COVID-19 vaccine mandates out there that the Supreme Court has not struck down. There are the federal employee and military vaccine mandates, and for private employers, the federal contractor vaccine-mandate. The federal contractor mandate arose from Pres. Biden’s Executive Order 14042, which directed executive agencies to include a clause in procurement agreements requiring employees who work on or in connection with a covered federal contract, or who even share a workplace with another employee who does, to be fully vaccinated against COVID-19.
You may have forgotten about that federal contractor vaccine mandate because that requirement has been the subject of nationwide temporary injunction for the last nine months, following a decision in December 2021 by a federal district court judge in Georgie in a legal challenge captioned Georgia v. Biden, one of several legal challenges to the Biden Administration’s authority to mandate the COVID-19 vaccine through the 1949 Federal Property and Administrative Services Act (aka the Procurement Act). The district court judge in Georgia v. Biden entered a nationwide preliminary injunction after concluding that the plaintiff States and one trade association were likely to prevail on their assertion that the mandate was outside the scope of the Procurement Act. The judge ordered the federal government not to enforce the mandate in any covered agreement, and several other federal courts have also imposed other, though narrower, restrictions on EO 14042. Since then, the Administration has shelved the vaccine requirement for federal contractors.
A lot of water has also passed under the bridge since that time, and the COVID-19 landscape has changed pretty significantly. Most notably, the CDC recently updated its COVID-19 guidance in several ways, but most relevant to the federal contractor vaccine mandate, the CDC now no longer distinguishes between vaccinated and unvaccinated individuals for how COVID-19 controls should apply. For example, quarantine and isolation requirements are perfectly aligned for fully vaccinated, partially vaccinated, and completely unvaccinated individuals. The rationale for the new relaxed guidance from Pres. Biden’s CDC is that there are now “so many tools available to use for reducing COVID-19 severity, [so] there is significantly less risk of severe illness, hospitalization and death compared to earlier in the pandemic.” That rationale would seemingly undermine the original purpose of the federal contractor vaccine mandate – ensuring “economy and efficiency” of the federal procurement system by ensuring the health of the contracting workforce.
Nevertheless, the Administration has continued to defend the federal contractor vaccine mandate as the legal challenges to EO 14042 have moved through the court system. The latest development in that litigation came in yet another Friday night COVID-19 surprise, Continue reading →
This past Friday, April 8, 2022, the US Court of Appeals for the Eleventh Circuit heard oral argument in Georgia v. Biden, one of the legal challenges to President Biden’s Executive Order imposing a hard vaccine-mandate on federal contractors. This was the first of several challenges to the federal contractor vaccination mandate to be heard at the US Court of Appeals level, and this particular challenge reaches the 11th Circuit with a rare nationwide temporary injunction imposed at the district court level.
There’s a link to the recording of the 11th Circuit argument on this page – https://www.ca11.uscourts.gov/oral-argument-recordings. Scroll down to docket number 21-14269. The recording is difficult to load, it stops and starts, and the sound quality is uneven, so if you don’t want to subject yourself to that, here is a summary of the argument and our best effort to read the tea leaves.
During this hearing, the three-judge panel was most interested in two aspects of the dispute: Continue reading →
It has been a real adventure trying to track all the different legal challenges in so many different courts to President Biden’s various different executive actions related to vaccination. While the fate of the OSHA Vaccinate-or-Test ETS (dead) and the CMC Healthcare Vaccine-Mandate (very much alive) are essentially settled by the Supreme Court, the Federal Contractor Vaccine-Mandate Executive Order (EO 14042) is still meandering its way through the federal courts. And there was a lot of activity in the courts this past Friday, January 21st, regarding the federal contractor EO and the federal employee vaccination mandate.
In the first case, Feds for Medical Freedom v. Biden, employees of federal contractors and employees of the federal government together are challenging both Executive Orders 14042 (vaccine-mandate for federal contractors) and 14043 (vaccine-mandate for federal employees). Judge Jeffrey V. Brown (a Trump-appointee to the S.D. of Texas) issued an opinion and order enjoining only enforcement of the federal employee mandate. Judge Brown’s reasoning in that case boiled down to a conclusion that injunctive relief is appropriate because: (1) the “Hobson’s Choice” of a workplace vaccine-mandate creates irreparable harm; and (2) the challenging federal employees have a likelihood of success on the merits because the President acted ultra vires and the implementation of EO 14043 violates the Administrative Procedures Act. Notably, Judge Brown declined to take action with regard to the federal contractor EO, noting that Judge R. Stan Baker (a Trump appointee to the S.D. of Georgia) in Georgia v. Biden had previously enjoined the federal government from enforcing the vaccination mandate on a nationwide basis.
While Judge Brown’s decision in Feds for Medical Freedom v. Biden did not change the status of the federal contractor EO, on the same day, Judge Baker issued a new order with regard to the injunction he had put in place in Georgia v. Biden in December. First, Judge Baker declined to address whether private federal contractors are enjoined from mutually agreeing with a federal agency to include COVID-19 safety clauses in their contracts; i.e., to voluntarily comply with the Safer Federal Workforce Task Force (“Task Force”) guidelines, as he viewed that as improperly seeking an advisory opinion while the case is pending on appeal. But on the broader question as to the scope of his national injunction, on Friday he wrote: Continue reading →