New Information on the Federal Contractor Vaccine Mandate

August 31, 2022

New Information on the Federal Contractor Vaccine Mandate

A recent court ruling has lifted the nationwide injunction blocking the enforcement of Executive Order 14042, the Federal Contractor Vaccine mandate. Specifically, the court found that the nationwide scope of the Georgia court’s injunction was overbroad and that the injunction should provide relief only to the parties in the lawsuit: Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia, and the members of the Associated Builders and Contractors. Thus far, the executive branch has not signaled any changes in enforcement, but firms should prepare for that. It is believed that this may trigger additional court actions, including other regional injunctions being adjusted or modified to include new parties/states. More legal analysis and client alerts should be expected shortly, but we wanted to share with you what we know.

On Friday, August 26, the U.S. Court of Appeals for the Eleventh Circuit issued a ruling that partially lifted the nationwide injunction – issued by the Southern District of Georgia in January 2022 – on enforcing Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. The Eleventh Circuit narrowed this injunction to apply only to federal contracts that involve the parties to the case: the Associated Builders and Contractors and the states of Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia.

Unless otherwise enjoined by another lawsuit (e.g., the November 2021 preliminary injunction in Kentucky, Ohio, and Tennessee), this Eleventh Circuit’s ruling could mean that contracting officers may begin immediately enforcing contract clauses that require proof that 100 percent of your workforce to be vaccinated against COVID-19 by January 18, 2022.  Several other injunctions remain in effect but cover only contractors in the States of Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, Wyoming, Kentucky, Tennessee, Ohio, and Florida.  The federal government can now enforce the vaccine mandate with respect to federal contractors and subcontractors outside of those states and ABC’s membership.

ACEC has made clear in our outreach to the Biden Administration, that no matter how well intended vaccination requirements are, this would be disruptive to the essential work our members perform for their federal clients. We understand the Administration’s goals of bringing this pandemic to a close, but it has been made clear by the thousands of companies we represent that implementation would be difficult, leading to unintended consequences and disruptions in the services we provide to our federal clients.

It is being reported that the Department of Justice is reviewing this ruling and that until the DOJ takes a position, the Government does not plan to enforce the relevant contract language. On August 31, the Safer Federal Workforce Task Force has updated its website to account for the Eleventh Circuit ruling.  However, contractors outside of the states that remained covered by court injunctions should resume preparations to ensure that all “covered contractor employees,” as defined by the task force’s guidance, are vaccinated against COVID-19 or have a religious or medical exemption from vaccination.

One key update follows:

UPDATED Q: Should agencies inquire regarding the vaccination status of contractor employees when those employees are onsite in Federal facilities?

A: To be consistent with Safer Federal Workforce Task Force guidance, agencies should pause asking onsite contractor employees to provide information about their COVID-19 vaccination status, regardless of COVID-19 Community Levels, where COVID-19 safety protocols do not vary based on vaccination status. This is true regardless of COVID-19 Community Levels.

As always, please do not hesitate to contact ACEC staff with any questions, and most importantly, we are seeking any new communications firms may have received from contracting officers following this recent ruling.

All comments to blog posts will be moderated by ACEC staff.