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The saga continues.  In prior alerts, we have been providing updates and analysis regarding continuing practical and legal challenges to implementing the President’s Path Out of the Pandemic plan, and in particular, the Executive Order 14042 (“EO 14042”) mandating that government contractors’ employees must be vaccinated unless one of the two legal exceptions – sincerely held religious belief or medical disability – is found by the government contractor to apply. Challenges to EO 14042 have been raised quickly by many, and in myriad forums.  Among the challenges are lawsuits filed by 26 States, as well as educational institutions, public and private entities that assert that they are covered federal contractors (or have filed parens patriae suits on behalf of covered federal contractors in their citizenry) subject to EO 14042. A number of these suits seek to enjoin enforcement of EO 14042. As a result, there is currently a nationwide injunction in place, staying implementation of the government contractor vaccination mandate under EO 14042 across government contracts and contract-like agreements being performed in the U.S. and outlying areas (the vaccination mandate does not apply to the performance of government contracts and agreements outside these areas). While this nationwide stay is in place, covered federal contractors are nonetheless left in limbo as the Administration has appealed many of the current rulings and the legal challenges continue. Below is an update of the current status of the various lawsuits challenging EO 14042:

Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, West Virginia v. Biden et al. (S.D. Georgia) – 12/7/21 Nationwide Preliminary Injunction

On December 7, 2021, the District Court granted the plaintiff States’ motion for a preliminary injunction, and the Court entered a nationwide preliminary injunction on December 7, 2021, which had the effect of staying implementation of EO 14042. The Administration appealed this ruling. Briefing in the appeal is set to be completed on January 24, 2022. The Administration requested that the District Court’s injunction be stayed pending the appeal. If granted, this stay would have renewed enforcement of EO 14042; however, the Court denied the Administration’s request to stay the preliminary injunction. Separately, the Administration requested that the District Court clarify its Order, and the Court has allowed briefing on the issue, which will be completed on January 14, 2022.

Commonwealth of Kentucky, Ohio, Tennessee v. Biden et al. (E.D. Kentucky) – 11/30/21 Limited Preliminary Injunction

On November 30, 2021, a U.S. District Judge in Kentucky granted a preliminary injunction enjoining the federal government from enforcing a vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee. The Administration filed a notice of appeal for this ruling, and the parties jointly requested a stay in the district court on December 20, 2021 pending the current appeal. On January 5, 2022, the Sixth Circuit denied the Administration’s requested stay, noting that the Administration did not establish that it would suffer irreparable harm as it delayed issuance and implementation of the vaccination mandate itself and there is a national stay already in place through the Georgia District Court proceeding.  Briefing for the appeal is currently scheduled to be completed on March 23, 2022.

Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, Wyoming. v. Biden et al. (E.D. Missouri) – 12/20/21 Limited Preliminary Injunction

On December 20, 2021, the District Court entered an Order enjoining the Defendants from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming. A scheduling conference is set for January 7, 2022, and the Administration has not filed a notice of appeal in this case.

Florida v. Nelson et al. (M.D. Florida) – 12/30/21 Limited Preliminary Injunction

On December 22, 2021, the District Court entered an Order finding that Florida demonstrated a substantial likelihood that EO 14042 exceeded the President’s authority under the Federal Property and Administrative Services Act (FPASA), and therefore did not need to reach whether EO 14042 exceeded constitutional or other legal and rulemaking authority to determine whether there was substantial likelihood of success on these grounds as well at this stage of the proceedings. The Court took the remainder of Florida’s motion for preliminary injunction under advisement, and the Court gave the parties until December 29, 2021 to propose a preliminary injunction consistent with the Court’s Order. Following receipt of the parties’ proposed orders, the Court entered a preliminary injunction on December 30, 2021.

Louisiana, Indiana, Mississippi v. Biden et al. (W.D. Louisiana) – 12/16/21 Limited Preliminary Injunction

On December 16, 2021 the District Court granted the plaintiffs’ motion for preliminary injunction. The Court’s Order enjoins the federal government from “enforcing the Task Force Guidance and FAR Memo in any contract, grant, or any other like agreement by any other name, whether for services or product and whether existing or new, between the Plaintiff States or their agencies and the national government.” The Administration has not filed a notice of appeal in this case.

Texas v. Biden (S.D. Texas)

In this case, the State of Texas filed suit seeking to enjoin enforcement of EO 14042’s government contractor vaccination mandate. While the State has sought injunctive relief, the case has been stayed following a status conference with the court. No Order was entered on the plaintiffs’ motion for TRO/preliminary injunction prior to the stay.

Arizona v. Biden (D. Arizona)

Briefing is ongoing with respect to the plaintiffs’ motion for injunctive relief in this case.

Next Steps

These suits bring a variety of claims, generally alleging EO 14042 exceeds Presidential and statutory authority and violates various constitutional provisions. So far, several district courts have held that the challenging States have a likelihood of success on the merits sufficient to warrant preliminary injunctive relief. However, the Administration has appealed certain of these rulings, and even if the challenging States succeed on appeal, the cases will go forward in the trial courts on the merits in order to determine if a permanent injunction and stay is warranted. Some federal contractors and subcontractors have already been required to accept the clause implementing EO 14042 for current and new contracts – the clause’s application has been stayed and so these provisions remain in the agreements but not enforced at this juncture.  Other contractors have not accepted the clause.  For them there is a pending, unanswered question as to whether they may be covered by the Path Out of the Pandemic Plan, the vaccinate or mask mandate Occupational Health and Safety Act Emergency Temporary Standard (OSHA ETS), since they are not covered by the EO 14042 mandate.  For many contractors and subcontractors that work at government facilities or sites, their employees may be subject to the vaccination or mask mandates for being admitted to these places. Contractors would be wise to have a plan in place for implementation of the requirements of EO 14042 should the current landscape change.

Separately, the interlocutory appeals of two other mandates under the OSHA ETS vaccinate or mask mandate applicable to companies in the U.S. employing 100 or more employees, which has taken effect, and the Centers for Medicare and Medicaid (CMS) interim final rule regarding vaccination are set to be argued at the Supreme Court on January 7th.  It is unlikely that the Supreme Court decision(s), in either case, will be issued quickly or result in clear guidance on the government contractor mandate.  However, they may shed light on the likelihood of success as the EO 14042 cases wind their way through the legal process. While these suits involve different statutory authority and constitutional questions, any reasoning offered by the Supreme Court may be instructive in evaluating the pending challenges to EO 14042 going forward. We will continue to monitor these developments. In the meantime, if you have questions regarding these ongoing developments, please contact Susan Warshaw Ebner, Luke VanFleteren, Eric Whytsell or the Stinson LLP contact with whom you regularly work.