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
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:
|Enjoined Enforcement of
|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.
Enforcement initially enjoined nationwide.
On appeal, the 11th Circuit narrowed the injunction, as
|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
|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
Appeal is pending in the 8th Circuit with oral argument
|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
Appeal is pending in the 5th Circuit with oral argument
|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
|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
The 11th Circuit’s Decision in Georgia v.
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
- 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
- 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
- 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
- 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
- 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
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
- 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
- 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
1. Georgia v. Biden, 574 F. Supp.3d 1337 (S.D.
2. Georgia v. President of the United States,
No. 21-14269, 2022 WL 3703822 at *17 (11th Cir. Aug. 26,
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
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
6. Georgia v. President of the United States,
No. 21-14269, 2022 WL 3703822 at *17 (11th Cir. Aug. 26,
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
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
alsoMeyer 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
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.
16. Id. at 4.
17. Id. at 5.
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.