On August 26, 2022, the U.S. Court of Appeals for the Eleventh Circuit narrowed the scope of a nationwide injunction that had barred enforcement of President Joe Biden’s COVID-19 federal contractor vaccine mandate. In December 2021, the U.S. District Court for the Southern District of Georgia had issued a nationwide injunction, finding that President Biden had likely exceeded his authority under the Federal Property and Administrative Services Act when he issued Executive Order 14042. The plaintiffs were the seven states of Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia, as well as Associated Builders and Contractors (a construction industry trade association).
In its decision, the Eleventh Circuit agreed with the district court and held that a preliminary injunction was appropriate. However, the Eleventh Circuit found that the district court’s injunction, which had applied nationwide to the plaintiffs as well as nonparties, was “unnecessary to provide complete relief to plaintiffs” in the context of new or existing procurement contracts. Therefore, the court narrowed the scope of the injunction to cover “any plaintiff State or member of Associated Builders and Contractors.”
Interestingly, the Eleventh Circuit’s decision separately discussed the context of solicitations. Citing concessions made by the federal government during the litigation, the court held that the government may not consider a bidder’s compliance with the vaccine mandate during the solicitation process if any of the plaintiffs are in the bidding pool. Therefore, the court upheld this aspect of the injunction even though it applied to nonparties, but only because doing so was “‘necessary to give the plaintiffs complete relief.’”
Pending litigation pertaining to Executive Order 14042 may affect federal contractors and subcontractors. While the Eleventh Circuit’s decision narrowed the scope of the Georgia district court’s injunction, other injunctions remain in place in other states. Federal contractors and subcontractors in the states of Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Wyoming are subject to different injunctions blocking enforcement of the contractor vaccine mandate. Covered contractors and subcontractors in other states face administrative nightmares if the Biden administration decides to enforce the vaccine mandate.
Federal contractors and subcontractors may want to monitor the Safer Federal Workforce Task Force website for any announcements from the Biden administration and federal agencies, such as the General Services Administration and U.S. Department of Defense, on their intent to enforce the federal contractor vaccine mandate in light of the Eleventh Circuit’s decision. For example, it is worth noting that on August 17, 2022, the Safer Federal Workforce Task Force updated its guidance to federal agencies about COVID-19 workplace safety protocols that pertain to federal employees. That updated guidance includes a pause on requiring documentation of vaccination status and asking about the vaccination status of on-site contractors, employees, and visitors.
Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group will continue to monitor developments regarding legal challenges to EO 14042 and will post updates in the firm’s Coronavirus (COVID-19) Resource Center and on the firm’s Affirmative Action / OFCCP and Government Contractors blogs as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.