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On December 7, 2021, in Georgia v. Biden, Case No. 1:21-cv-163, a federal district court judge in the U.S. District Court for the Southern District of Georgia issued a preliminary injunction enjoining enforcement of the COVID-19 vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States. This injunction was nationwide applied to all federal contractors. The federal government appealed that decision to the 11th Circuit.  

In response to that nationwide injunction, the Safer Federal Workforce Task Force, the government entity charged with implementing Executive Order 14042 and the federal contractor COVID-19 vaccine mandate, stated that the federal government would not be taking action to enforce the federal contractor vaccine mandate until its appeal was resolved. 

On August 26th, the 11th Circuit affirmed the district court’s decision that the federal contractor vaccine mandate was outside the scope of President Biden’s authority. The 11th Circuit, however, also found that the district court of Georgia’s nationwide injunction against enforcement of President Biden’s federal contractor vaccine mandate was too broad, and narrowed the scope of the injunction to only the parties to Georgia v. Biden.

On October 14, 2022, the Safer Federal Workforce Task Force issued a new statement regarding the 11th Circuit’s decision and the narrowing of the injunction against the federal contractor vaccine mandate. The Task Force stated that it anticipates the narrowing of the nationwide injunction to come into effect on October 18, 2022, and that, in response to the narrowing of the nationwide injunction, it anticipates three new guidance documents will be issued:

• The Office of Management and Budget will provide guidance regarding compliance with any applicable injunctions and whether contract clauses implementing Executive Order 14042 (the federal contractor vaccine mandate) should be included in any new solicitations and contracts;
• The Safer Federal Workforce Task Force will begin a process to update its guidance regarding COVID-19 safety protocols for covered contractor and subcontractor workplace locations, including a timeline for implementation to ensure that covered contractors and subcontractors are able to come into compliance with any COVID-19 safety protocols specified by the Task Force that they are not presently following; and
• Additional guidance to agencies will be provided on timing and considerations for provision ‎of written notice to contractors regarding enforcement of contract clauses ‎implementing Executive Order 14042, except as barred by any applicable injunctions.‎

            These new guidance documents have not yet been issued. The Safer Federal Workforce Task Force did not provide a specific deadline when the new guidance will be issued. The Task Force did state that, until the guidance is issued:

agencies should not (1) take any steps to require covered contractors and subcontractors to come into compliance with previously issued Task Force guidance; or (2) enforce any contract clauses implementing Executive Order 14042.

            Given this new statement form the Safer Federal Workforce Task Force, federal contractors who are potentially subject to the federal contractor vaccine mandate or the Task Force guidelines should continue to monitor the Safer Federal Workforce Task Force website for updates.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.

 

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