November 29, 2022

Volume XII, Number 333

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November 29, 2022

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November 28, 2022

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Federal Contractor Vaccine Mandate: Eleventh Circuit Partially Vacates Preliminary Injunction

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 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 [the trade association].”

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.’”

What’s Next?

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.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 242
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About this Author

T. Scott Kelly, Defense Contracting Attorney, Shareholder, Ogletree Deakins Law firm
Shareholder

Scott Kelly provides practical solutions for federal contractors and subcontractors across the United States to comply with the ever-changing affirmative action obligations imposed by doing business with the federal government.  He advocates on behalf of his clients in compliance evaluations and administrative enforcement actions triggered by the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).  Mr. Kelly assists manufacturing, transportation, construction, food processing, hospitality, healthcare, and financial institutions...

205-986-1024
Counsel

Emily Halliday is an attorney in the Washington, D.C. office of Ogletree Deakins. Emily is a member of the firm’s Affirmative Action and OFCCP Compliance Practice Group, whose experienced attorneys counsel and defend federal contractors and subcontractors throughout the United States on jurisdictional, compliance, and enforcement issues involving the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP).

Prior to joining Ogletree Deakins, Emily was a labor and employment associate at an international law firm in Washington, D.C. where she...

202-370-9668
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