Helping individuals, companies, and organizations understand key legal and practical considerations for promoting compliance and making better business decisions in these types of federal, state, and local government contracting matters MORE

Executive Order 14042 (the “EO”) and the implementing FAR clause and Safer Workforce Task Force (SWTF) Guidance – which mandate that government contractors and their subcontractors be vaccinated absent a legal exception – has been challenged by 26 states, as well as other entities.  Many of these suits allege that the President’s actions exceeded his authority under the U.S. Constitution and as delegated by Congress through legislation. Certain suits also challenge the rulemaking to implement the EO, and raise federalism and states’ rights concerns. Previously, we reported on the preliminary injunction issued by Judge Van Tatenhoven of the District Court for the Eastern District of Kentucky, enjoining the enforcement of the EO for federal contracts and contract-like agreements involving performance in the States of Kentucky, Ohio, and Tennessee.  We also reported on the nationwide injunction issued by Judge Baker of the District Court for the Southern District of Georgia, similarly enjoining enforcement of the EO but expanding it to cover federal contracts and contract-like agreements “in any state or territory of the United States of America.”

In the latest decision issued in this trail of State-led challenges, Judge Drell of the District Court of the Western District of Louisiana, issued a preliminary injunction over implementation of the EO for the States of Louisiana, Mississippi, and Indiana with regard to “contracts, grants, or any other like agreement by any other name between the Plaintiff States and the national government.”  The Court declined to extend the stay to private contractors since there was “not a single plaintiff representative of private contractors,” nor evidence of the EO’s effect on private contractors presented in that case, and there was a national injunction already in place for private contractors under the Georgia v. Biden case.

The Louisiana Court found that the identified States had standing to bring suit based on their contracts and the “Hobson’s choice” they faced in addressing the Government’s “strong-arming tactics” of accepting the clause or risking the loss of current and future contracts given their lack of bargaining power. The Louisiana Court discussed, but did not reach the question of whether the States had parens patriae standing to bring suit on behalf of its citizenry although the Court seemed to be sympathetic to finding such standing. Instead, the Court based its finding of standing on the fact that the States had established a case or controversy in regard to conflict between the EO and implementing actions and the Tenth Amendment of the U.S. Constitution.

In issuing the preliminary injunction here, the Louisiana Court noted that there were “bizarre coverage differences” between the EO and the FAR memorandum implementing it. The Court pointed out that the EO does not apply to existing or current contracts, or grants, contracts with Indian Tribes, contracts at or below $250,000, contracts for work performed outside the U.S., or contracts for products. In contrast, the Court found that the FAR memorandum implementing the EO expressly seeks to expand the scope by applying the requirements more broadly.  While contracts with Indian Tribes and those performed outside the U.S. are expressly excluded under the FAR memorandum, the Court pointed out that grants were not excluded.

While the author of this blog notes that FAR provisions do not normally apply to grants unless expressly incorporated into the grant or grant rules applicable to the grant, the Court’s finding does not appear to be based solely on the fact that the FAR memorandum does not exclude grants.  Rather, it appears to rely on the facts brought forth in live testimony during the hearing that the National Institute of Health contacted the University of Louisiana and requested that the University comply with the SWTF Guidance through the inclusion of a deviation clause into an existing grant.  The testimony reported that the University was left with no choice but to accept the deviation clause without bargaining, or risk loss of its grant. Personnel employed by the University also presented testimony that the University denied their assertion of a religious exception because there was “uncertainty as to whether any accommodation for a religious exemption is sufficient to comply” with the SWTF Guidance and that the personnel would be fired unless they obtained fully vaccinated status by January 18, 2022.

In examining whether the Federal Property and Administrative Services Act (FPASA) provided legislative authority for the EO’s required government contractor vaccine mandate, the Court stated that there would need to be a “close nexus” between the FPASA and the EO.   However, the Court determined that the primary purpose of the EO, to motivate public health policy first and foremost to increase vaccinations, was not aligned with FPASA policy, which is to promote economy and efficiency, encompassing factors like “price, quality, suitability, and availability of goods or services that are involved in all acquisition decisions.”  Further, the Court found that the public health policy purpose of the EO conflicts with the Tenth Amendment of the U.S. Constitution, which entrusts the protection of the “safety and the health of the people,” a noneconomic activity, principally to the States.

With regard to challenges that the States’ brought against the rulemaking under the EO, the Court determined that, two years into the pandemic, the circumstances did not satisfy the urgent and compelling circumstances test so as to justify waiver of the relatively short required notice and comment period for rulemaking. Notably, the Court stated that the Office of Management and Budget’s (OMB’s) actions to calendar a comment period on the OMB determination was a “manipulation” of the letter of the law and the revised OMB determination to adopt the then updated SWTF Guidance and move the date for full vaccination of government contractors to January 18, 2022 did not “pacify” complaints that the arbitrary effective date was inconsistent with the Administrative Procedure Act.

Cases in other jurisdictions are also winding their way through the judicial process.

In the interim, the revised SWTF Guidance still provides that “The Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order . . . . In all other circumstances, the Government will enforce the clause, except for contractor employees who perform substantial work on or in connection with a covered contract in an Excluded State or Outlying Area, or in a covered contractor workplace located in an Excluded State or Outlying Area. . . . Note: Federal agency COVID-19 workplace safety protocols for Federal buildings and Federally controlled facilities still apply in all locations.”  The Government clearly is still hoping to overturn or dial back the nationwide stay. Contractors with contracts that task them to perform work at government facilities still need to comply with agency requirements.  And  those that have contracts with the clause and perform within and outside the United States and its outlying areas may have questions about the impact of this enforcement “stay” on their contracts in light of this ambiguous language. Contractors in these circumstances may want to check with their contracting officer to confirm the scope of their requirements.

Stay tuned for further developments.

Breaking news – Following an expedited briefing schedule and hearing, the United States District Court for the Southern District of Georgia, in Georgia v. Biden, No. 21-cv-00163, has issued a nationwide preliminary injunction staying implementation of the government contractor vaccination mandate under Executive Order (EO) 14042. The Court determined that the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia, and the Associated Builders and Contractors, Inc. had standing to bring suit against the vaccination mandate. In its decision the Court held:

even in times of crisis this Court must preserve the rule of law and ensure that all branches of government act within the bounds of their constitutionally granted authorities. Indeed, the United States Supreme Court has recognized that, while the public indisputably “has a strong interest in combating the spread of [COVID-19],” that interest does not permit the government to “act unlawfully even in pursuit of desirable ends.” Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2490 (2021) (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582, 585–86 (1952)). In this case, Plaintiffs will likely succeed in their claim that the President exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act when issuing Executive Order 14042.

Finding that the President exceeded his authority granted under the Federal Property and Administrative Services Act (FPASA), the Court declined to address the other potentially viable grounds alleged by Plaintiffs to support the grant of a preliminary injunction, including (1) the Safer Workforce Task Force Guidance and FAR Deviation Clause were issued without complying with the Administrative Procedure Act’s notice and comment requirements and (2) if the FPASA does authorize EO 14042, then both are unconstitutional under the non-delegation doctrine and because they exceed Congress’s authority and intrude on state sovereignty.

This national ruling follows on the heels of last Friday’s preliminary injunction granted on similar grounds by the United States District Court for the Eastern District of Kentucky that was limited to the States of Kentucky, Tennessee and Ohio.

The impact of this ruling cannot be understated as many government contractors are working to persuade their employees to commence vaccination in order to be fully vaccinated by January 18, 2022. Moreover, as the Court noted, the administrative processes required of Plaintiffs to comply with the requirements of the vaccination mandate are “incredibly time-consuming processes… complying with a regulation later held invalid almost always produces the irreparable harm of nonrecoverable compliance.” It further found that:

In contrast, declining to issue a preliminary injunction would force Plaintiffs to comply with the mandate, requiring them to make decisions which would significantly alter their ability to perform federal contract work which is critical to their operations. Indeed, it appears that not granting an injunction could imperil the financial viability of many of ABC’s members. Additionally, requiring compliance with EO 14042 would likely be life altering for many of Plaintiffs’ employees as Plaintiffs would be required to decide whether an employee who refuses to be vaccinated can, in practicality, be reassigned to another office or another task or whether the employee instead must be terminated. “[A]ny abstract ‘harm’ a stay might cause . . . pales in comparison and importance to the harms the absence of a stay threatens to cause countless individuals and companies.”  (Citations omitted).

We will further analyze the impacts and follow up actions of the Administration in light of these rulings.  Stay tuned.

As anticipated in our prior alerts, there have been continuing practical and legal challenges to implementing the Path Out of the Pandemic plan. This alert provides an update on the current status of challenges to OSHA’s Emergency Temporary Standard (ETS), Executive Order 14042 for federal contractors, and the Centers for Medicare and Medicaid Services (CMS) Interim Final Rule. At this time, the implementation and enforcement of these actions have all been paused by judicial action either nationwide or in certain states, as follows:

  • OSHA – Nationwide Stay: The OSHA ETS was halted by a nationwide stay issued on November 12, 2021 by the Fifth Circuit Court of Appeals. OSHA subsequently suspended its implementation and enforcement of the ETS pending further action by the Sixth Circuit where the consolidated case now sits.
  • Federal Contractor Guidelines – Stay in Three States: Executive Order 14042, mandating covered federal contractors to require employee vaccinations was also enjoined from enforcement on November 30, 2021 by a federal judge in Kentucky, impacting those employers in three states: Kentucky, Ohio and Tennessee. Other challenges to the executive order and implementing federal contractor guidelines remain pending.
  • Healthcare Rule – Nationwide Stay: The CMS Interim Final Rule, requiring COVID-19 vaccinations for all staff at Medicare and Medicaid certified facilities, was enjoined on November 29, 2021, by a federal judge in Missouri, staying implementation and enforcement of the CMS vaccine rule in 10 states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. Thereafter, the CMS vaccination rule was stayed for the remainder of the United States on November 30, 2021, by a federal judge in Louisiana.

Nationwide Stay of OSHA’s ETS

In a previous alert, we detailed the requirements of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS), which is broadly applicable to employers with 100 or more employees. This ETS requires covered employers to develop, implement and enforce a mandatory COVID-19 vaccination policy, or a policy requiring employees to either get vaccinated or undergo regular COVID-19 testing and wear a face covering. Challenges to the ETS were filed in appellate courts across the county immediately after the ETS was published.

Fifth Circuit Stays Implementation and Enforcement

Federal law governs these challenges and allows for judicial review in the U.S. Court of Appeals. While multiple Petitions for Review were pending, the U.S. Court of Appeals for the Fifth Circuit, which has jurisdiction in Louisiana, Mississippi and Texas, issued a stay of the ETS on November 6, 2021. This stay was not explicitly limited to the Fifth Circuit. The Court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” The Fifth Circuit later rejected the government’s request to withdraw the stay pending consolidation of the various Petitions for Review.

On November 13, 2021, OSHA issued a statement indicating it would not enforce the ETS until further court orders, essentially conceding that the stay was of nationwide applicability. OSHA stated: “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation. Note that the comment period is separate from the litigation.”

On November 16, 2021, the Petitions for Review pending in various courts of appeal were consolidated at the U.S. Court of Appeals for the Sixth Circuit. While all the Petitions for Review will be heard by the Sixth Circuit, the stay of the ETS previously issued by the Fifth Circuit currently remains in effect.

Status of Proceedings Consolidated in Sixth Circuit

Since consolidation, a number of filings have been made regarding the Petitions for Review; however, the Sixth Circuit has not yet issued any substantive opinions. There are three key pending actions:

  • Petitions for the initial decision to be heard en banc: Multiple petitioners filed petitions for en banc review, which request that all active status judges on the Sixth Circuit, not just a three judge panel, hear the consolidated Petitions for Review. At this time, the Sixth Circuit skews in favor of Republican appointees, with the current composition (including senior-status judges who are in the running to be selected for a panel) of the Circuit is 20 Republican appointees – eight Democratic appointees. If the Sixth Circuit permits en banc review, only active-status judges would sit, and the breakdown by appointment for the full Circuit is 11 Republican appointees – five Democratic appointees. However, Judge Helene White was nominated by the Clinton administration, never got a vote, and was re-nominated by George W. Bush, making the likely partisan breakdown 10-6.
  • OSHA’s Motion to Dissolve the Stay: On November 23, 2021, OSHA filed an emergency motion to lift the stay entered by the Fifth Circuit. The Court issued a briefing schedule, which requires briefing to be completed on the motion to lift the stay on December 10, 2021. This is notable, as that date is after the first major compliance deadline in the OSHA standard, December 5, 2021. OSHA requested an expedited briefing schedule, but the Court has not taken any action to date.
  • Merits: Ultimately, the parties will also brief the case on the merits to determine whether OSHA met its burden of determining that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards and that a standard is necessary to protect employees from such danger. This briefing will not occur until after the stay motions are decided, and a separate briefing schedule will be issued.

We are continuing to follow the complex litigation and assist clients with determining how to proceed while the Stay is in effect, as OSHA’s Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace guidance remains in place, as does OSHA’s National Emphasis Program.

In parallel, the ETS was published as an Interim Final Rule with a comment period. This would allow OSHA to satisfy the public participation requirements for development of a permanent standard, which could be issued notwithstanding the ETS litigation. On November 30, 2021, OSHA extended the comment period for the standard. Comments are now due January 19, 2022. OSHA specifically solicited comments regarding whether the ETS should be made a permanent standard; whether small employers (less than 100 employees) have administrative capacity to implement a vaccine mandate; what “significant risks” should be addressed in any permanent standard (face coverings, as example); and whether prior COVID infection should be considered as part of the standard. If you would like to provide comments on a potential permanent standard, contact our attorneys listed below.

Limited Federal Contractor Stay

Our previous alerts described Executive Order 14042, which requires covered contractor employees to be vaccinated against COVID-19. 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. Unlike the ETS and CMS decisions, the stay is not applicable nationwide.

In the decision, the Court determined that the states of Kentucky, Ohio and Tennessee had standing to challenge the vaccine mandate, reasoning that “contractors who do not comply will likely be blacklisted from future contracting opportunities if they refuse to comply.”  On the merits, the Court determined a preliminary injunction was warranted on the ground that the president’s authority is not absolute and must be grounded in the constitution or statute. The Court determined that the president exceeded his statutory authority in promulgating Executive Order 14042 and delegating authority to manage implementation of mandatory vaccination—a public health measure—using the Federal Property and Administrative Services Act’ (FPASA) statutory authority to create an economical and efficient system for federal government procurement and supply. The Court noted several concerns with this overreach based on FPASA: (1) infringement of the Competition in Contracting Act’s full and open competition requirements; (2) violation of the constitutional nondelegation doctrine to exercise statutory authority the president has not been granted by Congress; and (3) federalism and the Tenth Amendment’s principles that powers not delegated to the U.S. by the Constitution nor prohibited by it to the states are reserved to the states and do not confer on the president general police powers that are also reserved to the states.

Notably the court declined to issue a national preliminary injunction, but instead issued a preliminary injunction to address contracts and subcontracts in Kentucky, Ohio and Tennessee, as well as sheriff plaintiffs, noting that “the proper scope of injunctions is ongoing, [and] this court believes that redressability in the present case is properly limited to the parties before the court.”

This Kentucky case is not the only challenge to the federal contractor vaccine mandate’s viability. In addition to the suit discussed above, there are lawsuits challenging the vaccine mandate and subsequent guidance filed by 16 other states. These lawsuits are in various stages and challenge the implementation of the executive order as violating constitutional and statutory authorities and rights, as well as administrative rights and procedures. The suits also seek injunctive relief, and we anticipate rulings will be entered in one or more of those cases in the coming weeks based on the briefing schedules.

Nationwide CMS Injunction

In a prior alert, we detailed the Interim Final Rule issued by the Centers for Medicare & Medicaid Services (CMS). On November 29, 2021, a U.S. District Judge in Missouri entered an order preliminarily enjoining the government from enforcing the Interim Final Rule against any and all Medicare and Medicaid certified providers and suppliers within the states of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. The Court reasoned that Congress did not grant CMS authority to mandate the vaccine, CMS bypassed notice and comment requirements, and the mandate is arbitrary and capricious. The government has filed a notice of appeal.

On November 30, 2021, a U.S. District Judge in Louisiana entered an order granting a preliminary injunction which enjoins the federal government from implementing the CMS mandate nationwide, excluding those 10 states already covered by the Missouri order. The Court relied on reasoning from the Fifth Circuit’s stay of the OSHA ETS in conducting its analysis and further found that the CMS rule improperly bypassed notice and comment requirements, exceeded the government defendants’ authority, was contrary to established law, was arbitrary and capricious, and implicated additional constitutional concerns. It is likely that appeals of these cases will further muddy the waters regarding the ultimate determination of the viability of the Interim Final Rule. However, enforcement of the rule is currently stayed in all 50 states.

Takeaways

The ultimate viability of these federal vaccine requirements will continue to undergo judicial scrutiny and additional appeals are all but certain, meaning clarity on the issues may not occur anytime soon. In the meantime, if you have questions regarding these ongoing developments, please contact Brittany Barrientos, Amy Conway, Susan Warshaw Ebner, Alisa Ehrlich, Molly Keppler, Pat Konopka, Erin Naeger, Sharon Ng, Kristin Parker, Greta Reyes, Bernadette Sargeant, Stephanie Scheck, Ben Woodard, Eric Whytsell or the Stinson LLP contact with whom you regularly work.

Luke VanFleteren, who also assisted in drafting this article, is a law clerk at the firm.

On November 4, 2021, the White House released a fact sheet on the issuance of new OSHA ETS and CMS Rules and also addressed some changes to the previously announced EO 14042 federal contractor vaccination mandate. During last week’s White House press briefing, officials had suggested that the administration might at least delay implementation of the EO 14042 for federal contractor employees.

Today’s new White House fact sheet appears to follow up on that promise, although there are significant questions about the EO 14042 rollout that remain unanswered. The fact sheet describes the administration’s plans to extend the deadline for government contractor compliance by requiring that contractor and subcontractor employees under covered government contracts must have their final vaccination dose by January 4, 2022. The White House explained this revised deadline for the vaccination requirement is intended to set a uniform date for final vaccination dose requirements for federal contractor employees as well as employees falling under the OSHA ETS and CMS rules.

This fact sheet appears to soften the deadline for federal contractor employees by extending the deadline for full compliance with Safer Workforce Task Force (SWTS) guidance from the original deadline of December 8, 2021. But given the number of unresolved issues, federal contractors should avoid irrational exuberance regarding what this means for their compliance efforts.

Considerations Going Forward

  • While the White House made its announcement regarding the extension of the federal contractor vaccination deadline by fact sheet, it remains to be seen how this will be implemented. The SWTF guidance has not yet been amended to reflect the new date for covered contractor employees to receive their last vaccination, January 4, 2022, and it does not state when a contractor employee will now be considered fully vaccinated. Will it be two weeks after the last vaccination—January 18—or some other date?
  • It also remains to be seen whether and how federal agencies will alter their previously established timelines for execution and submission of bilateral contract modifications and other administrative matters. Some agencies may decide to leave the current timelines for compliance in place, which could create confusion. Of course, any changes to existing timelines and procedures to reconcile with the new OSHA ETS and CMS rule timelines may cause confusion as well.
  • The White House fact sheet states that the new OSHA ETS and CMS Rules will not apply to “workplaces covered by … the federal contractor vaccination requirement.” This statement creates confusion regarding whether the OSHA ETS rule will apply to federal contractor workplaces that are not covered by the SWTF guidance.
  • Further, the SWTF guidance requires masking and physical distancing for unvaccinated employees being processed for or determined to be eligible for accommodation pursuant to a legal exception for disability or a sincerely held religious belief. In contrast, the White House fact sheet describes the new OSHA ETS rule as requiring unvaccinated workers to wear face masks in the workplace; it does not identify any social distancing requirement. Does this mean that social distancing is not a necessary element of the rule for covered contractor employees that are not yet fully vaccinated or that are covered by an accommodation arising from a legal exception? Moreover, the SWTF guidance will control over a contractor’s covered employees, but will the contractor now need to apply the OSHA ETS rule to those employees that may be segregable and not subject to the vaccination mandate? What about visitors? What rule will apply, to whom, and when?
  • The fact sheet and SWTF guidance also leave unanswered which federal contracts are covered by the EO14042 vaccination requirement. The EO 14042 identified only contracts and subcontracts above the simplified acquisition threshold, $250,000 (SAT). Agency FAR class deviations to implement this requirement and the Civilian Agency Acquisition Council guidance both advise that agencies seek implementation of the requirement under contracts below the SAT and also beyond the services, leasing and construction expressly identified for coverage under EO 14042. None of the guidance explains how the value of a contract is to be calculated to determine whether it exceeds the triggering threshold, nor does it explain whether contractors can push back on clauses that are inserted in contracts below the SAT or contracts that are not identified for “mandatory” coverage under the EO 14042. The hammer for implementation—whether that be non-issuance of contracts, options, extensions, etc.—is significant, and obtaining answers to these questions as the deadlines loom adds a sense of urgency.

For information regarding the Centers for Medicare and Medicaid Services Interim Final Rule released on November 4, 2021, see here, and for information regarding the OSHA ETS announced on November 4, 2021, see here.

Luke VanFleteren, who also assisted in drafting this article, is a law clerk at the firm.

We have previously reported on implementation issues arising from President Biden’s Path out of the Pandemic plan, which included issuance of Executive Order 14042, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors, the related Safer Workforce Task Force Guidance, and Federal Acquisition Regulation (FAR) Class Deviations.

Since our last report, several legal developments warrant attention:

  • Nineteen states filed lawsuits challenging the basis and processes for implementation of the executive order and regulatory scheme.
  • The U.S. Supreme Court denied the use of its Emergency Docket to enjoin the application of the Maine law mandating vaccination of health care workers. In a dissenting opinion, three justices provided guidance on the circumstances under which a regulatory scheme mandating vaccination during the COVID-19 pandemic, would impermissibly violate fundamental rights and justify injunctive relief.
  • The Task Force updated its guidance on October 21 and 29, and November 1, clarifying affiliation for purposes of determining employee coverage, flexibility in addressing and resolving accommodations, and the timeline for a contractor’s path of compliance. On October 27, one of the chairs of Task Force, Jeff Zients, stated: “You know, to be clear, the requirements for federal workers and contractors will not cause disruption. … 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.”

It is important to remember, while legal challenges to the executive order play out, the order remains in effect. It has not yet been enjoined. Whether these developments auger for changes in the Biden plan, or at least a movement of the deadline for compliance, remains to be seen. However, it is likely that these changes will impact how contractors work to implement the mandatory vaccination requirement.

States File Lawsuits Challenging Executive Order 14042

On October 28, the state of Florida filed a lawsuit in federal court challenging the order and implementing guidance, Office of Management and Budget (OMB) approval of the guidance, and issuance of FAR Council guidance in lieu of proper procurement notice and comment rulemaking. Florida’s lawsuit is among the most recent of the nineteen suits reported to have been filed by states, followed by a 10-state coalition that filed suit in Missouri federal court on October 29. In addition, cases have been filed by military service members and federal employees obligated to receive the vaccine, and federal contractors obligated to ensure their employees are fully vaccinated. Some of these lawsuits have moved for injunctive relief and await decision. While the time by which contractors’ employees must be fully vaccinated is approaching, decisions in these cases may result in changes to the timeline and plan.

In their suits, the states argue, among other things, that the order and related actions impose unlawful obligations on federal contractors. The order and related guidance require covered federal contractors to implement workplace safety protocols related to COVID-19, including the mandatory vaccination of these contractors’ covered employees working on or in connection with a government contract or contract-like agreement. We have previously written about the FAR Class Deviations being issued to implement the order and vaccine requirements.

In the Florida suit, for example, the state asks the court to set aside the order, OMB rule and FAR Council guidance, arguing each are unlawful. The state also requests injunctive relief enjoining the president and federal agencies that contract with the state of Florida from enforcing the order, OMB rule, and FAR Council guidance. In this suit, the state claims that both the OMB rule and FAR Council guidance constitute federal agency actions that are in excess of permissible agency authority, and the state further claims the rule and guidance were not promulgated with the proper rulemaking procedure. Florida alleges, inter alia, that the OMB rule and FAR Council guidance violate the Administrative Procedure Act and requirements of 41 U.S.C. §§ 1303 and 1707 because: (1) they should have been issued by the FAR Council, and power was improperly delegated to the OMB Director, (2) the Federal Property and Administrative Services Act of 1949 (FPASA) does not otherwise grant the president the power to issue orders with the effect of law, (3) the FPASA does not authorize OMB approval of the Guidance, and (4) the rule and Guidance are inconsistent with the Competition in Contracting Act. Florida further alleges that the OMB rule and FAR council guidance amount to procurement policies with a significant effect, impact, or cost and are subject to notice and comment requirements and, therefore, are invalid because no opportunity for notice and comment was provided. In the other most recent lawsuit, filed by ten states in Missouri on October 29, the states challenge the administration’s “use of federal procurement statutes to create sweeping new power to issue decrees over large swaths of the U.S. economy and take over areas of traditional state power.”

Task Force Updates Federal Contractor & Federal Agency Guidance

Meanwhile, the Safer Federal Workforce Task Force issued new and updated FAQs relating to its Guidance on October 21 and 29, 2021 and November 1, 2021. Key takeaways include:

Guidance for Federal Contractors

  • Timeline for vaccination after accommodation denied. The Task Force is not setting a firm deadline for full vaccination of a covered contractor employee whose request for accommodation has been denied. Instead, the FAQ as updated now provides that covered contractors “should establish a timeline for a covered contractor employee whose request for an accommodation is denied to promptly become fully vaccinated.”
  • Documented medical need can be the basis for extension of the vaccination deadline. The updated guidance clarifies flexibility for medical needs. Covered contractors are permitted to grant a covered contractor employee an extension to the deadline for vaccination due to a documented medical necessity even if the contractor employee’s condition does not meet the legal definition of “disability.” For example, the FAQ provides that where the CDC recommends delaying COVID-19 vaccination for at least 90 days after receiving monoclonal antibodies or convalescent plasma for COVID-19 treatment, a covered contractor employee may be granted more time to be vaccinated. The guidance, therefore, now explicitly states “an individual’s medical need should be considered on a case-by-case basis, including any medical evaluation that addresses the individual’s particular circumstance.”
  • Covered contractor employees may have their vaccination delayed for certain medical reasons. The updated FAQ now recognizes a basis for delay of the vaccination based on CDC recommendations, such as where the employee has a known current COVID-19 infection, multisystem inflammatory syndrome, or develops myocarditis or pericarditis after a dose of an mRNA COVID-19 vaccine. In such instances where vaccination should be delayed for an employee, the FAQ provides that the covered contractor employee should become fully vaccinated promptly after clinical considerations no longer recommend delay. During the period in which vaccination is delayed, a covered contractor employee must follow applicable masking and physical distancing protocols for not fully vaccinated adults.
  • Vaccination and pregnancy. The CDC recommends COVID-19 vaccination for people who are pregnant, breastfeeding, trying to become pregnant now, or trying to become pregnant in the future. However, a covered contractor may allow a covered contractor employee to delay vaccination based on the contractor employee’s particular medical circumstances, consistent with the covered contractor’s process for reviewing delay requests.
  • Timeline for requests for accommodation to be resolved. The Task Force has clarified that a covered contractor is not required to resolve all requests for accommodation at the time covered employees begin work on a covered contract, and employers may still be reviewing requests for accommodation at the time that employees begin work on a covered contract or at a covered workplace. While accommodation requests are pending, the covered contractor must require the employee with a pending accommodation request to follow workplace safety protocols for individuals who are not fully vaccinated.
  • Workplace safety protocols for unvaccinated employees. The applicable federal agency will set forth workplace safety protocols for covered contractor employees who are not fully vaccinated and spend time in a federal workplace. In most circumstances, covered contractor employees will need to follow applicable masking, physical distancing, and testing protocols, and federal workplaces may impose heightened safety protocols.
  • Guidance when a covered contractor employee refuses to be vaccinated. A covered contractor is permitted to determine the appropriate means of enforcement with respect to a covered employee who refuses to be vaccinated and has not provided, or does not have a pending request for, an accommodation. The covered contractor may use its usual processes for enforcement of workplace policies, such as those addressed in an employee handbook or collective bargaining agreement. The Task Force also sets forth the enforcement plan for federal agencies as one model for enforcement employers may use.

The guidance provided for federal agencies utilizes an enforcement policy that 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 guidance for federal agencies provides that employees should not be placed on administrative leave while the agency is pursuing an adverse action for refusal to be vaccinated.

The guidance further provides that during the time period of enforcement, the covered contractor must ensure the covered contractor employee at a covered contractor workplace is following all workplace safety protocols for individuals who are not fully vaccinated.

  • Next steps if a covered contractor does not comply with the Task Force’s requirements. While covered contractors are expected to comply with the 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 the covered contractor does not take steps to comply, significant actions, including termination of the contract, can be taken.

Guidance for Federal Agencies, Potential Guidance for Covered Contractors

  • Accommodation request forms. An updated FAQ for federal agencies provides that employees seeking a legally required exception to the vaccine requirement are to be provided a form to make that request. The updated FAQ includes links to template forms for federal employees seeking an exception based on medical condition or based on religious belief. The updated FAQ confirms that the agency may also ask for other information as needed to determine if the individual is legally entitled to accommodation. These forms may shed light on the types of information contractors might consider as well. We continue to advise contractors to work with legal counsel on the reasonable accommodation process for workers objecting to vaccination.
  • Administrative leave for vaccination. Federal agencies are required to grant administrative leave to cover the period of time it takes a federal employee to receive a COVID-19 vaccine booster shot or additional dose of the vaccine. Leave-eligible federal employees are entitled to up to four hours of administrative leave to receive a booster short or authorized additional dose of the vaccine. It is not mandated for covered contractor employees. Contractors considering how to obtain covered contractor employee compliance may consider this type of incentive. However, unless the contracting officer mandates this type of requirement, it is unclear whether and to what extent a contractor would be able to seek recovery for the costs of such leave incentive. This issue may be addressed in the emergency temporary standard that the Occupational Safety and Health Administration (OSHA) is expected to issue as early as this week.
  • GSA FAR Class Deviation Guidance. On November 1, 2021 the GSA also issued new guidance on contractor acceptance of the mandatory vaccination clause in GSA contracts, including its federal supply schedule and multiple award contracts and orders. Where contractors are still working toward compliance, the new GSA guidance provides that “GSA views acceptance of the modification as an agreement that the contractor intends to comply with the terms….As long as the covered contractor demonstrates progress in meeting the requirements of the clause, GSA will work with contractors to ensure they have the time and opportunity to achieve full compliance.” This type of guidance is likely to help move contractors towards acceptance of the clause in GSA contracts, but whether it will result in increased compliance or merely delay the timeline under which contractors must terminate employees that refuse vaccination and are not covered by a legal exception remains to be seen. It also is unclear whether other agencies will take the same position.

U.S. Supreme Court Declines Emergency Relief to Maine Healthcare Workers Objecting to Mandatory Vaccination

On October 29, the Supreme Court denied Maine health care employees’ request through the Court’s emergency docket for injunctive relief to prevent enforcement of Maine’s COVID-19 vaccination requirement on healthcare workers based on constitutional and Title VII claims. Maine’s law requires healthcare workers to receive the COVID-19 vaccine and does not specifically allow for religious exemptions. On October 19, the First Circuit Court of Appeals affirmed the District Court’s denial of injunctive relief, and the Supreme Court failed to take the case under its emergency docket on October 29.

In rejecting the emergency appeal, six justices (including the Chief Justice) agreed with the decision not to intervene. Justices Barrett and Kavanaugh stated that the court’s emergency docket is not the right place to resolve the merits of the workers’ claims. Justices Gorsuch, Thomas, and Alito dissented, contending that they would grant injunctive relief as Maine’s law on its face was not neutral and generally applicable, because the law allows for medical exemptions, but does not allow for religious exemptions.

Taken together, the concurring and dissenting opinions indicate that a potential path may be available through the normal appeals process to assess the constitutional merits of these types of laws. Given the number of cases on similar topics that are going through the trial and appeals court processes, there may be a future opportunity for the Supreme Court to address the underlying merits.

In the meantime, the executive order and corresponding actions remain in effect. COVID-19 cases continue in the U.S. and abroad. Both the federal government and states are engaging in a variety of actions to stem the spread of this virus, and also to address the rights of the various parties in these activities. We are watching developments closely.

Luke VanFleteren, who also assisted in drafting this article, is a law clerk at the firm.