Safer Federal Workforce Task Force

By Conn Maciel Carey’s COVID-19 Task Force

On Friday, October 14^th, 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 18^th. OMB and the Task Force suggested that we would see at least three new guidance documents now that the injunction is narrowed, including:

1. 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.
2. 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.”
3. 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 19^th (the day after the 11^th Circuit’s narrowing of the nationwide injunction took effect), OMB did issue one of the notices we were expecting. Continue reading →

By Conn Maciel Carey LLP’s COVID-19 Task Force

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 21^st, 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 →