UPDATE (01/04): On December 22, a Federal judge in Florida became the latest judge to issue a preliminary injunction halting enforcement of the federal contractor and subcontractor vaccine mandate requirements.  The decision in State of Florida v. Nelson, et al. blocks enforcement only in Florida, but Judge R. Stan Baker’s order (discussed below) in State of Georgia, et al. v. President of the United States, et al. blocking enforcement nationwide remains in effect.  The Federal government has appealed that decision to the Eleventh Circuit and the Eleventh Circuit has declined to stay Judge Baker’s order during that appeal. Briefing on the appeal will not be completed until the end of January.

UPDATE: On December 9, attorneys for the Justice Department appealed the nationwide injunction to the Eleventh Circuit.  We will continue to provide updates as the situation develops.

On December 7, 2021, a federal judge issued a nationwide preliminary injunction halting enforcement of the federal contractor and subcontractor vaccine mandate requirements issued by the Safer Federal Workforce Task Force in response to President Biden’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors.  The mandate requires covered contractor employees to be fully vaccinated by January 18, 2022.  On November 30, a federal judge in Kentucky blocked enforcement of the mandate in Kentucky, Ohio, and Tennessee.  We blogged about that decision here.

Judge R. Stan Baker’s decision came in a case originally filed by Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia, the governors of several of those states, and various state agencies, including the Board of Regents of the University System of Georgia.  Later, the Associate Builders and Contractors, Inc. (“ABC”), a trade organization, and one of its chapters in Georgia filed a Motion to Intervene along with their own Motion for Preliminary Injunction.  Judge Baker denied the Motion to Intervene as to the local chapter, but granted the Motion to Intervene as to ABC.  As discussed below, the Judge then found that the inclusion of this additional plaintiff warranted issuing a nationwide injunction (as opposed to the Kentucky judge’s more limited Order).

As in the Kentucky case, Judge Baker found the Plaintiffs would likely be able to show that the mandate exceeds the President’s powers under the Federal Property and Administrative Services Act.  He declined to issue a decision as to whether the mandate likely violated the constitutional non-delegation doctrine or infringed on rights reserved to the states under the Tenth Amendment.

As to why the Court here issued a nationwide injunction, Judge Baker cited the inclusion of ABC, contending that the trade association had members “all over the country” and were awarded “57% of federal contracts exceeding $25 million during fiscal years 2009-2020.”  His injunction does not appear to apply to other aspects of the contractor COVID-19 requirements issued by the Task Force, including those related to masking and social distancing.

It is unclear whether the federal government will seek to have the injunction lifted, and whether such an effort will be successful.  But, effective immediately, covered contractors in any state or territory of the United States of America are no longer mandated to require their covered workers to be vaccinated.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns.  Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

Federal government contractors and subcontractors have been dealing with a steady stream of new FAQs and details regarding the COVID-19 safety requirements for federal contractors and subcontractors first announced by President Biden’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, and then issued by the Safer Federal Workforce Task Force (the “Task Force”). Our prior postings on all of those developments can be found here, here, here, here, and here.

On November 10, 2021, the Task Force issued updated Guidance and new FAQs regarding the COVID-19 requirements. As previously reported, a White House Fact Sheet issued on November 4, 2021 indicated that the December 8, 2021 deadline for covered contractor and subcontractor employees to be fully vaccinated would be extended. The updated Guidance issued on November 10, 2021 formally extends that deadline providing: “Covered contractor employees must be fully vaccinated no later than January 18, 2022.” This means covered contractor and subcontractor employees must receive their second dose of the Pfizer or Moderna vaccine, or single dose of Johnson & Johnson vaccine by January 4, 2022.

The Task Force also issued new and updated FAQs regarding the requirements. These include:

• Announcing the availability of sample signage that contractors and subcontractors can post at entrances to announce safety requirements at their worksites.
• Clarifying that when a covered contractor or subcontractor employee works at a federal government worksite (as opposed to working at home or at the contractor/subcontractor’s facility), the employee must still abide by the Guidance’s requirements.

We will continue to monitor and update our readers on new developments regarding the Task Force’s Guidance.

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Subscribe to Proskauer’s Law and the Workplace blog to stay current on the latest Biden administration developments impacting your business. Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

Federal government contractors and subcontractors have been scrambling for weeks to try to digest and implement the COVID-19 safety measures issued by the Safer Federal Workforce Task Force (the “Task Force”) in the wake of the Biden Administration’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors.  Our prior analysis of the Task Force’s Guidelines are available here, here, and here.  On November 1, 2021, the Task Force issued additional guidance on some key questions with which contractors have been grappling.

As previously reported, among other things, the Task Force’s Guidelines require contractors to have their employees who work on or in connection with covered contracts, and those who work with them in contractor facilities, vaccinated by December 8, 2021.  Since the Guidelines were issued, government agencies have been issuing contract modification notices and incorporating the new requirements into existing contracts. Simultaneously, contractors have been trying to determine how to comply with the December 8, 2021 deadline and what to do with employees who will not be vaccinated by that date or who refuse to be vaccinated.

The Task Force’s November 1, 2021 guidance suggests the federal government does not view December 8, 2021 as an absolute deadline, but rather as an aspirational one – provided that contractors are making “good faith” attempts to comply.  That being said, absent good faith efforts, agencies are directed to consider contractual remedies.  Specifically, in a new FAQ, the Task Force provides:

Covered contractors are expected to comply with all requirements set forth in their contract.  Where covered contractors are working in good faith and encounter challenges with compliance with COVID-19 workplace safety protocols, the agency contracting officer should work with them to address these challenges.  If a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken.

This is consistent with remarks made at an October 27, 2021 press briefing by Jeff Zients, the White House Coronavirus Response Coordinator.  Specifically, Mr. Zients stated:

The other piece of this is that vaccination requirements for federal workers and contractors — there are still weeks until we reach those deadlines. And it’s important to remember that those deadlines are not cliffs. The federal worker deadline is the 22nd of November, and the federal contractor deadline is not until December [8th].

But even once we hit those deadlines, we expect federal agencies and contractors will follow their standard HR processes and that, for any of the probably relatively small percent of employees that are not in compliance, they’ll go through education, counseling, accommodations, and then enforcement.

So, these processes play out across weeks, not days. And so, to be clear, we’re creating flexibility within the system. We’re offering people multiple opportunities to get vaccinated. There is not a cliff here.

And the purpose, I think, most importantly, is to get people vaccinated and protected, not to punish them. So, we do not expect any disruptions.

Further, the Task Force recognizes addressing accommodation requests may take time and do not have to be completed before December 8, 2021.  In another FAQ, the Task Force explains:

The covered contractor may still be reviewing requests for accommodation as of the time that covered contractor employees begin work on a covered contract or at a covered workplace.  While accommodation requests are pending, the covered contractor must require a covered contractor employee with a pending accommodation request to follow workplace safety protocols for individuals who are not fully vaccinated as specified in the Task Force Guidance for Federal Contractors and Subcontractors.

The Task Force also provided guidance for how contractors should handle employees who refuse to get vaccinated for reasons other than religious beliefs or disability/medical accommodations.  The new FAQ provides that contractors “should determine the appropriate means of enforcement with respect to [such] employees,” which “may include … using its usual processes for enforcement of workplace policies, such as those addressed in the contractor’s employee handbook or collective bargaining agreements.”  It further suggests that contractors consider the federal government’s approach to such employee resistance, which “encourages compliance, including through a limited period of counseling and education, followed by additional disciplinary measures if necessary.  Removal occurs only after continued noncompliance.”

The new publication also provides some clarity around what constitutes a “covered contractor workplace.”  The Guidelines define “covered contractor workplace,” as one which is “controlled by a covered contractor at which any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract.”  All employees who work at a covered contractor workplace are subject to the Guidelines’ vaccine, masking, and social distancing requirements. The FAQs addressed the “control” aspect of the definition, and whether a workplace controlled by a contractor’s affiliate can be a “covered contractor workplace.”  The FAQs provide that “[i]f any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract at a workplace controlled by a corporate affiliate of that covered contractor, that workplace is considered a covered contractor workplace.”  In turn, the FAQ states that “business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly: (i) either one controls or has the power to control the other; or (ii) a third party controls or has the power to control both.  Indicia of control include, but are not limited to, interlocking management or ownership, identity of interests among family members, shared facilities and equipment, or common use of employees.”

These FAQs provide some helpful and welcome guidance for contractors struggling with how to comply with the Guidelines.  We will continue to report on new developments.

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Subscribe to Proskauer’s Law and the Workplace blog to stay current on the latest Biden administration developments impacting your business. Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.