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The COVID-19 Vaccine Mandate Roller Coaster Continues: The 11th Circuit Ends The Nationwide Injunction Of The Government Contractor Vaccine Mandate – Government Contracts, Procurement & PPP


Introduction

COVID-19 vaccine mandates have been among the most divisive
issues in the United States in recent times. This has resulted in
extensive litigation challenging the legitimacy of various vaccine
mandates, particularly those mandating that private employers
require their employees to be vaccinated against COVID-19. Executive Order (“EO”) 14042,
Executive Order on Ensuring Adequate COVID Safety Protocols for
Federal Contractors
, has been at the forefront of these
lawsuits. If not enjoined, EO 14042 requires covered federal
contractor employees to be fully vaccinated against COVID-19. We
have discussed the scope of EO 14042 and the implementing Safer
Federal Workforce Task Force (the “Task Force”) Guidance
here, here, and here.

On December 7, 2021, the US District Court for the Southern
District of Georgia issued a nationwide preliminary injunction
prohibiting the government from enforcing EO 14042’s vaccine
mandate—the only nationwide injunction issued to
date.1 The government appealed the injunction.
On August 26, 2022, the US Court of Appeals for the Eleventh
Circuit issued its decision, which has two significant impacts.
First, the 11th Circuit is the first appellate court to address the
legality of EO 14042 and affirmed that the vaccine mandate is
likely unlawful. Second, the 11th Circuit narrowed the nationwide preliminary injunction
to effectively cover only the parties to the
litigation.2 The government is now enjoined
from (1) enforcing EO 14042’s vaccine mandate against the
plaintiff states (Georgia, Alabama, Idaho, Kansas, South
Carolina, Utah, and West Virginia
) “and members of the
Associated Builders and Contractors”; and (2) considering
whether any offeror (not just the plaintiffs and their members)
complies with the vaccine mandate when evaluating proposals and
awarding contracts in procurements where one of the plaintiffs
is an offeror
.

Presuming the government takes the opportunity to renew
enforcement, this means that every contractor will be required to
comply with EO 14042’s vaccine mandate unless they (a) are one
of the plaintiff states; (b) are a member of Associated Builders
and Contractors, Inc. (“ABC”); (c) are covered by a
different injunction; or (d) file a separate lawsuit and obtain
injunctive relief. It also means that, unless one of the plaintiff
states or an ABC member is competing in a procurement, agencies may
consider an offeror’s compliance with EO 14042 when evaluating
proposals.

Status of Litigation Challenging EO 14042

State governments have led the fight against the federal
contractor vaccine mandate, with one trade organization joining in
Georgia v. Biden. Despite commentary that the mandate
would be hard to challenge, those lawsuits have succeeded almost
universally.3 Those courts have held that
President Biden exceeded his authority under the Federal Property
and Administrative Services Act of 1949 (“FPASA”), which
is the statute cited in EO 14042 as granting the authority to
require COVID-19 vaccination. Below is a chart summarizing the
various injunctions and pending cases:
















District Court
Case
Enjoined Enforcement of
Mandate
Appeal Status
Georgia v. Biden, 574 F.
Supp. 3d 1337 (S.D. Ga. 2021)
Yes Georgia v. President of the
United States
, No. 21-14269, 2022 WL 3703822 (11th Cir. Aug.
26, 2022)

Enforcement initially enjoined nationwide.


On appeal, the 11th Circuit narrowed the injunction, as
discussed herein.

Florida v. Nelson, 576 F.
Supp.3d 1017 (M.D. Fl. 2021)
Yes Florida v. Nelson, No.
22-10165 (11th Cir.)

Enforcement enjoined as to all covered contracts in Florida.


Appeal is pending in the 11th Circuit (appeal was stayed pending
the 11th Circuit’s decision in Georgia v. Biden).

Missouri v. Biden, 576 F.
Supp.3d 622 (E.D. Mo. 2021)
Yes Missouri v. Biden, No.
22-1104 (8th Cir.)

Enforcement enjoined with respect to covered contracts in
Alaska, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire,
North Dakota, South Dakota, and Wyoming.


Appeal is pending in the 8th Circuit with oral argument
scheduled for September 21, 2022.

Louisiana v. Biden, 575 F.
Supp.3d 680 (W.D. La. 2021)
Yes Louisiana v. Biden, No.
22-30019 (5th Cir.)

Enforcement enjoined with respect to covered contracts between
the US government and Louisiana, Indiana and Mississippi. The
injunction does not apply to non-parties.


Appeal is pending in the 5th Circuit with oral argument
scheduled for October 3, 2022.

Kentucky v. Biden, 571 F.
Supp.3d 715 (E.D. Ky. 2021)
Yes Kentucky v. Biden, No.
21-6147 (6th Cir.)

Enforcement enjoined in Kentucky, Ohio and Tennessee.


Appeal is pending in the 6th Circuit. Oral argument was held on
July 21, 2022.

Brnovich v. Biden, 562 F.
Supp.3d 123 (D. Az. 2022)
Yes Brnovich v. Biden, No.
22-15518 (9th Cir.)

Enforcement enjoined in Arizona.


Appeal is pending in the 9th
Circuit.

The 11th Circuit’s Decision in Georgia v.
Biden

The most significant decision in this area has been the
Georgia v. Biden decision from the US District Court for
the Southern District of Georgia, which preliminarily enjoined
enforcement of the COVID-19 vaccine mandate nationwide, as amended
by the new decision from the 11th Circuit.4 The
basis for extending the injunction nationwide was that ABC, which
is a construction trade organization with members performing
federal contracts across the country, would not be adequately
protected through a narrower injunction.5

The 11th Circuit agreed with the district court that a
preliminary injunction was appropriate because, among other
findings, the plaintiffs are likely to succeed on the merits and
obtain a permanent injunction.6 But following a
detailed discussion of the propriety of nationwide injunctions and
principles of how the federal judiciary should operate, the court
held that a nationwide injunction was
overbroad.7 The government is now enjoined from
(1) enforcing EO 14042’s vaccine mandate against the plaintiff
states (Georgia, Alabama, Idaho, Kansas, South Carolina,
Utah, and West Virginia
) “and members of the Associated
Builders and Contractors”; and (2) considering whether any
offeror (not just the plaintiffs and their members) complies with
the vaccine mandate when evaluating proposals and award contracts
where one of the plaintiffs is an offeror.8

Implications of the 11th Circuit’s Decision in Georgia
v. Biden

  • Do I have to comply with EO 14042 and FAR
    52.223-99?
    Maybe. The first step is to assess which of
    your contracts incorporate FAR 52.223-99, Ensuring Adequate
    COVID-19 Safety Protocols for Federal Contractors
    (OCT 2021)
    (DEVIATION). If one or more of your contracts incorporates FAR
    52.223-99, consider whether you fall within the scope of any of the
    existing injunctions. If one or more contracts incorporate FAR
    52.223-99 and none of the injunctions apply, then you should expect
    to be required to comply with the vaccine mandate. Of course,
    contractors (or prospective contractors, assuming they can
    establish standing) can file their own lawsuits, intervene in
    existing lawsuits, or try to enlist an industry organization of
    which they are a member to file a lawsuit challenging EO
    14042.

  • But didn’t the Office of Management and Budget
    (“OMB”) issue guidance stating that it was not enforcing
    EO 14042 and FAR 52.223-99?
    Sort of. OMB stated: “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 US state or outlying area subject to a
    court order prohibiting the application of requirements pursuant to
    the Executive Order
    (hereinafter, “Excluded State or
    Outlying Area”). 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.” Thus, OMB’s guidance barring enforcement of EO
    14042
    turns on whether covered contractor personnel fall within
    the scope of an injunction. Although this statement can be read as
    suggesting that an updated written notice of enforcement is a
    prerequisite to enforcement actions, relying on that interpretation
    carries risks and may not provide an adequate defense to
    enforcement.

  • When will the government start enforcing the vaccine
    mandate?
    The government could begin enforcing the vaccine
    mandate immediately. The injunction did not bar agencies from
    including FAR 52.223-99 in contracts; it only prohibited
    enforcement against contractors that have not met the vaccination
    requirements.9 Thus, the government could, at
    least in theory, begin enforcing FAR 52.223-99 immediately for all
    contractors subject to FAR 52.223-99 and not covered by an
    injunction. We would, however, expect some level of agency
    flexibility and anticipate OMB will issue further guidance
    following the 11th Circuit decision.

  • What if my state prohibits employer vaccine
    mandates?
    This question involves complex principles of
    preemption. In the government contracting context, federal
    law—including lawful executive orders—will control over
    state law under the concept of so-called “field
    preemption.”10 The Supreme Court has held
    that that the US government’s interests in its contracts are so
    unique and pervasive “that obligations to and rights of the
    United States under its contracts are governed exclusively
    by federal law.”11 Thus, contractors must
    either challenge the enforceability of EO 14042 or, alternatively,
    challenge any state enforcement action as preempted by EO
    14042.

  • The 11th Circuit’s decision may result in other
    injunctions being adjusted.
    Although no other court has
    issued a nationwide injunction, the 11th Circuit’s decision
    resulted in an injunction that is narrower than other existing
    injunctions. As shown in the chart above, certain courts have gone
    beyond enjoining enforcement of EO 14042’s vaccine mandate
    against the specific plaintiffs to entire states. The 11th Circuit
    could have narrowed the injunction from a nationwide injunction to
    a state-specific injunction. Instead, the 11th Circuit made the
    injunction party specific. Will other circuits follow the 11th
    Circuit’s lead by narrowing injunctions that prohibit
    enforcement in a specific state to only specific parties? Or will
    other courts broaden their injunctions to cover parties and states
    that the 11th Circuit decision now omits from its coverage? Time
    will tell.

  • There likely will be further litigation following the
    11th Circuit’s decision.
    Now that the nationwide
    injunction has been lifted, contractors should expect further
    litigation. There are existing cases that were stayed while the
    nationwide injunction was in effect.12 There
    may also be new lawsuits filed by additional states, contractors,
    trade and industry organizations, and potentially individual
    contractor employees. It is possible that another court will enjoin
    enforcement nationwide (particularly a court in a different
    circuit), but contractors that cannot readily comply without
    material adverse effects on their companies may consider whether it
    is in their interests to join the litigation.

UPDATED GUIDANCE FROM THE SAFER FEDERAL WORKFORCE TASK
FORCE

On August 17, 2022, the Task Force issued revised guidance for federal agencies, and further
revised guidance may be forthcoming. Below are key points from the
revised guidance that are most relevant to contractors. With the
nationwide injunction lifted, this guidance may signal upcoming
changes to the Task Force’s guidance for federal
contractors.

  • Onsite Contractor Employee and Visitor Vaccination
    Status.
    Federal agencies should no longer ask onsite
    contractor employees or visitors for evidence of vaccination status
    “where COVID-19 safety protocols do not vary based on
    vaccination status,” and agencies are now prohibited from
    using the Government-wide Certification of Vaccination
    form.13 However, agencies may, in consultation
    with the Task Force, ask onsite contractor employees and visitors
    about their vaccination status and collect that information where
    there are unique, site-specific needs.14 In
    that circumstance, a separate agency-specific form and Systems of
    Records Notice may be required.15

  • COVID-19 Tests. The Task Force issued guidance
    directing agencies to “stop implementing any current
    requirements that, solely because of their vaccination status,
    onsite contractor employees or visitors need to be able to provide
    proof of a negative COVID-19 test when accessing or in Federal
    facilities, or at an agency-hosted meeting, event, or
    conference.”16 However, agencies may, in
    conjunction with the Task Force, require COVID-19 tests in
    high-risk settings.

  • Masking is optional when the COVID-19 Community Level
    is LOW or MEDIUM.
    If the COVID-19 Community Level is HIGH
    in the county where the federal facility is located, masking is
    required.17 If the COVID-19 Community Level is
    LOW or MEDIUM, masking is optional (unless otherwise required by
    federal state, tribal, territorial, or local law), and agencies
    must generally inform individuals that masking is optional (e.g.,
    posting signs). Where masks are required, “agencies should
    require all individuals to wear a high-quality mask or respirator
    (such as an N95).”18

  • Post-Exposure Protocols. Agencies can no
    longer prohibit persons, regardless of vaccination status, who have
    been exposed to COVID-19, from entering federal facilities or
    interacting with the public as part of their official
    responsibilities. However, those persons must follow masking and
    physical distancing requirements and must take a COVID-19 test
    “at least 5 full days after their last exposure (ideally, on
    or after day 6).”19

Footnotes

1. Georgia v. Biden, 574 F. Supp.3d 1337 (S.D.
Ga. 2021).

2. Georgia v. President of the United States,
No. 21-14269, 2022 WL 3703822 at *17 (11th Cir. Aug. 26,
2022).

3. See, e.g., Erin Mulvaney, Why Contractor
Vaccine Mandate Is ‘Tough’ to Challenge in Court
,
Bloomberg Law (Nov. 10, 2021), https://news.bloomberglaw.com/daily-labor-report/why-contractor-vaccine-mandate-is-tough-to-challenge-in-court.

4. Georgia v. Biden, 574 F. Supp.3d 1337 (S.D.
Ga. 2021). The court later clarified that the injunction applied
only to the vaccine mandate—not other safeguards (e.g., mask
requirements).

5. Id. at 1357 (“Accordingly, if the Court
were to enjoin the enforcement of the mandate only in the Southern
District of Georgia or only in Georgia, Alabama, Idaho, Kansas,
South Carolina, Utah, and West Virginia, then ABC’s members
would not have injunctive relief as to covered contracts in other
states.”).

6. Georgia v. President of the United States,
No. 21-14269, 2022 WL 3703822 at *17 (11th Cir. Aug. 26,
2022).

7. Id. at 13-17.

8. Id. at 17.

9. Georgia, 574 F. Supp.3d at 1357
(“Accordingly, the Court ORDERS that Defendants are ENJOINED,
during the pendency of this action or until further order of this
Court, from enforcing the vaccine mandate for federal
contractors and subcontractors in all covered contracts in any
state or territory of the United States of America.” (emphasis
added)).

10. The Supreme Court has held that a lawful presidential
executive order—whether issued pursuant to “express
statutory authorization” or as “a reasonable exercise of
the President’s responsibility for the efficient operation of
the Executive Branch”—”may create rights protected
against inconsistent state laws through the Supremacy Clause.”
Old Dominion Branch No. 496, Nat. Ass’n of Letter Carriers,
AFL-CIO v. Austin
, 418 US 264, 273 (1974); see
also
Meyer v. Bush, 981 F.2d 1288, 1303 (D.C. Cir.
1993) (“An executive order is, for many purposes, a form of
presidential ‘law.'”); Ass’n for Women in Sci.
v. Califano
, 566 F.2d 339, 344 (D.C. Cir. 1977) (“[T]he
action by the President in this instance has a distinct statutory
foundation; indeed, it is to be accorded the force and effect of a
statute.”).

11. Boyle v. United Techs. Corp., 487 US 500,
505 (1988) (citations omitted).

12. See, e.g., Conner v. Biden, No.
6:21-CV-074-H, 2021 WL 6773174 (Dec. 28, 2021).

13. Initial Implementation Guidance for Federal
Agencies on Updates to Federal Agency COVID-19 Workplace Safety
Protocols
, Safer Federal Workforce Task Force (Aug. 17, 2022),
at 3 https://www.saferfederalworkforce.gov/downloads/Initial%20Implementation%20Guidance_CDC%20Streamline_20220817.pdf.

14. Id.

15. Id.

16. Id. at 4.

17. Id. at 5.

18. Id.

19. Id. at 8.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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