This GT Alert covers the following:

• Injunctions pause enforcement of Executive Order (EO) 14042, COVID-19 Safety Protocols for Federal Contractors.

• The U.S. District Court for the Eastern District of Kentucky enjoined enforcement of the federal contractor requirements in Kentucky, Ohio, and Tennessee.

• The U.S. District Court for the Southern District of Georgia enjoined enforcement of the federal contractor requirements nationwide.

• Continuing appeals and challenges to the federal contractor requirements raise further questions and uncertainty for contractors.

Two recent federal district court decisions have paused, pending further judicial review, the enforcement of the requirements imposed on federal contractors and subcontractors under EO 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (discussed here). First, on Nov. 30, 2021, in Commonwealth of Kentucky v. Biden, the U.S. District Court for the Eastern District of Kentucky granted the plaintiffs’ motion for a preliminary injunction, enjoining the enforcement of the EO in the states of Kentucky, Ohio, and Tennessee. The court considered the plaintiffs’ constitutional challenges to the president’s authority, and found the plaintiffs were likely to succeed on the merits and to suffer irreparable harm without preliminary relief. As a result, the court enjoined the government from enforcing the requirements of the EO, including the vaccine mandate, for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.

In response to the Kentucky court’s ruling, the Office of Management and Budget (OMB) issued its memorandum: Update on Implementation of EO 14042 Office of Management and Budget (OMB) and Office of Federal Procurement Policy (OFPP), Dec. 1, 2021. (Class Deviation 2021-O0009, Revision 1, Attachment 2). This memorandum advises that agencies should take no action to enforce contract clauses requiring compliance with the COVID-19 Safety Protocols for Federal Contractors if the contract is performed at least in part in Kentucky, Ohio, and/or Tennessee. In addition, OMB instructed agencies to “refrain from attempting to insert such a clause …[or asking] that the contractor voluntarily agree to the insertion of such a clause” in contracts where performance is at least in part in Kentucky, Ohio, and/or Tennessee. Finally, the memorandum notes that agencies are prohibited from inserting such a clause in new solicitations, contracts, or orders, including extensions or renewals, that may be performed (even partially) in Kentucky, Ohio, and/or Tennessee, unless the clause provides it will not be enforced in contracts or via a court order.

On Dec. 7, 2021, the U.S. District Court for the Southern District of Georgia in State of Georgia v. Biden issued a nationwide preliminary injunction of the COVID-19 vaccine mandate for federal contractors and subcontractors. The Georgia court found that the plaintiffs were likely to succeed on their claim that the president exceeded the authorization granted to him by Congress through the Federal Property and Administrative Services Act when issuing EO 14042. In issuing a nationwide preliminary injunction, the Georgia court expressed the view that an injunction with a limited scope would “prove unwieldy and would only cause more confusion.” Thus, “to truly afford injunctive relief to the parties before it,” the Georgia court determined a nationwide preliminary injunction was appropriate.

On Dec. 8, 2021, in response to the court rulings, OMB issued updated guidance on implementing requirements of EO 14042 and the associated COVID-19 Safety Protocols for Federal Contractors in response to the Georgia court nationwide injunction. This guidance, which is published on the Safer Federal Workforce Task Force’s website, notes it is intended to assist agencies and contractors with ensuring compliance with applicable court orders and injunctions, including those that are preliminary and may be supplemented, modified, or vacated, depending on the course of ongoing litigation. This most recent OMB guidance states that the government will take no action to enforce clauses implementing requirements of EO 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. The OMB guidance notes that COVID-19 workplace safety protocols for federal buildings or federally controlled facilities remain, and that contractor employees must fully comply with these requirements while working onsite. Unlike the earlier OMB memorandum issued after the Kentucky court decision, however, the new OMB guidance does not address whether agencies should continue to insert clauses implementing the requirements of EO 14042.

Appeals of the existing injunctions, as well as additional challenges to the mandates and implementation of EO 14042, are pending in various courts. As a result, it is difficult to anticipate or predict whether the requirements of EO 14042 and contract clauses implementing COVID-19 Safety Protocols for Federal Contractors will withstand judicial review and, if they do, when federal agencies might again begin enforcing those requirements. Moreover, it is possible that the requirements of COVID Safety Protocols for Federal Contractors could be amended or revised in response to these unresolved challenges. Accordingly, contractors and subcontractors potentially subject to the requirements of EO 14042 should carefully monitor further developments, and consider making initial plans to address likely contingencies.