In latest edition of The Wright Toolbox:
- Federal Government Mandatory Vaccine Update – Where Are We Now?
Federal Government Mandatory Vaccine Update – Where Are We Now?
In prior WCS newsletters, we advised you of a September 2021 Presidential Executive Order 14042 requiring new, renewed and extended federal government contracts to require federal contractors and certain subcontractors to comply with specified COVID-19 prevention measures, including full vaccination of employees and required workplace safety protocols, such as use of masks and physical distancing requirements. Several states brought legal challenges to the Executive Order, resulting in six federal district courts issuing injunctions against enforcement of both the executive order and related guidance from the Safer Federal Workforce Task Force (the “Task Force”). These injunctions varied in scope, as some applied only to certain states within the jurisdiction of the specific court and also addressed different elements of the Executive Order and related guidance; however, one federal judge in the Southern District of Georgia issued a broader preliminary injunction in December 2021 barring implementation of the vaccine mandate nationwide.
The federal government appealed the Georgia federal court ruling, and in late August 2022, the Eleventh Circuit Court of Appeals issued a decision agreeing with the trial court that the vaccination mandate exceeded the President’s authority under a federal procurement statute but rejected the nationwide scope of the injunction and ruled that it only applied to the parties before the court, which consisted of the states of Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, West Virginia and members of the Associated Builders and Contractors (“ABC”). As a result, the vaccine mandate under Executive Order 14042 could resume in many locations not covered by the 11th Circuit decision or any injunction issued by another court. The Eleventh Circuit’s decision took effect on October 18, 2022.
Back in February of 2022, as a result of the injunctions issued by various courts, the Task Force advised that the federal government would not be taking any actions at that time to enforce the contract clause in federal government contracts that implements the requirements of Executive Order 14042. On October 14, 2022, the Task Force and the Office of Management and Budget (“OMB”) issued an update that they planned to shortly issue new guidance, implying that the federal government may be resuming enforcement of the mandate in the future. On October 19, 2022, OMB issued a new guidance document advising federal agencies not to take any steps to require contractors and subcontractors to comply with previously issued Task Force guidance or to enforce any contract clauses implementing the vaccine mandate or to modify any existing contracts to include such clauses absent future guidance.
It is anticipated that any future guidance will 1) reflect how both the pandemic and the public perception of COVID-19 have evolved since the Executive Order was issued over a year ago; and 2) give contractors a period of time to comply following any resumption of enforcement (as well as enforcement of any possible new requirements such as vaccine boosters).
We will continue to monitor this issue provide regular updates on any major developments related to EO 14042. If you have any questions about requirements for federal contractors, please contact me at crodgers-waire@wcslaw.com/410-659-1310 or any Wright, Constable & Skeen attorney.