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Volume XII, Number 148

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Nationwide Injunction on COVID-19 Vaccine for Federal Contractors Applies to Vaccine Requirement Only

The federal court that issued a nationwide injunction of Executive Order (EO) 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” has issued a new Order stating that it enjoined only the vaccine requirement of the EO’s implementing tool: the Safer Federal Taskforce (Safer Taskforce) Guidance. As a result of this Order, federal contractors covered by the EO should dust off their compliance plans to meet the many non-vaccine requirements of the Safer Taskforce Guidance, though action by other federal courts considering preliminary injunctions of the EO may put all of the requirements back on hold.

Background

On December 7, 2021, a Georgia federal district court judge issued a preliminary nationwide injunction halting enforcement of EO. Georgia v. Biden. EO 14042 requires federal contractors and subcontractors with certain covered contracts to ensure their covered employees are fully vaccinated against COVID-19 by January 18, 2022, among other requirements. The case is on appeal to the U.S. Court of Appeals for the 11th Circuit. No decision is expected until after oral argument in the case, which is scheduled for April 4, 2022.

The Biden Administration took the position (through OMB guidance to federal agencies, an explanation on the Safer Taskforce website, as well as contracting agency directives to contractors) that the whole of EO 14042 and the Safer Taskforce Guidance implementing the EO was enjoined and, therefore, unenforceable pending further action in the federal courts. In a motion to the trial court, however, the Biden Administration asked the court to clarify the scope of the injunctive order, asking whether the order enjoined all of the Safer Taskforce Guidance or just the vaccination requirement.

The trial court issued an Order on January 21, 2022, explaining that the injunction enjoined the vaccine requirement only and did not address the other provisions of the Safer Taskforce Guidance, which includes masking, physical distancing, travel, quarantine, and other workplace safety provisions (including the requirement that federal contractors covered by EO 14042 designate a coordinator to oversee compliance with these requirements).

The Safer Taskforce has not yet changed its website information with respect to enforcement, but that action could happen at any time.

Implications

Of course, other federal courts have enjoined EO 14042 and but only in certain states (Florida v. Nelson (M.D. Fla.) (Florida), Kentucky v. Biden (Kentucky, Ohio, and Tennessee), Missouri v. Biden (E.D. Mo.) (Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming)) and there may now be uncertainty as to exactly what provisions and requirements have been enjoined. In addition, other federal courts (for example, Feds for Medical Freedom v. Biden (S.D Tex.) and Hollis v. Biden (N.D. Miss.)) with pending lawsuits challenging the EO have stayed those cases or denied motions for preliminary injunctions based on the Georgia v. Biden nationwide injunction. Plaintiffs in those actions may petition the courts for injunctive relief of all of the Safer Taskforce Guidance requirements now that it is clear only the vaccine requirement is enjoined nationwide. For now, we may be left with a patchwork of decisions, and it is unclear whether or by what means federal contracting agencies may enforce the non-vaccination requirements of the Safer Taskforce Guidance in covered contracts.

Bottom line: Covered federal contractors should follow all of the Safer Taskforce Guidance requirements, except for the vaccine requirement (unless they are doing so on a voluntary basis or because they are covered by another federal, state or local vaccine mandate), unless they are only in a jurisdiction in which the EO Safer Taskforce Guidance has been stayed in entirety by the courts.

Jackson Lewis P.C. © 2022National Law Review, Volume XII, Number 26
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About this Author

Laura Mitchell, Jackson Lewis, Management Representation lawyer, Contractual Drafting Attorney
Principal

Laura A. Mitchell is a Principal in the Denver, Colorado, office of Jackson Lewis P.C. She represents management exclusively in all areas of employment law, focusing on affirmative action and government contractor compliance.

Ms. Mitchell is a Principal in the firm’s Affirmative Action and OFCCP Defense practice group, representing government and non-government contractors in Office of Federal Contract Compliance Programs (OFCCP) matters, preparing for and defending OFCCP audits, and counseling employers on issues stemming...

303-225-2382
Leslie Stout-Tabackman, Labor Employment Attorney, Shareholder, Jackson Lewis Law Firm
Shareholder

Leslie Stout-Tabackman is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She has a broad-based practice counseling and representing employers on compliance with federal and state workplace laws and regulations, and designing and implementing sound practices and policies.

Ms. Stout-Tabackman regularly counsels and represents clients with matters before the U.S. Department of Labor’s (DOL) Wage and Hour Division, including Fair Labor Standards Act (FLSA) issues and prevailing wage and benefits issues arising under the Service Contract Act...

703-483-8345
F. Christopher Chrisbens, Jackson Lewis, litigation attorney, employment law, intellectual property legal counsel, OFCCP compliance lawyer
Of Counsel

F. Christopher Chrisbens is Of Counsel in the Denver, Colorado, office of Jackson Lewis P.C. Over his years as a litigation attorney, manager, trainer and workplace investigator, Mr. Chrisbens has developed a diverse array of employment law skills serving employers in a variety of legal and corporate settings.

Mr. Chrisbens began his career as a litigator and appellate practitioner in Los Angeles, California, and later returned to Boulder, Colorado where he was partner in a Boulder firm practicing in the areas of commercial...

303-225-2381
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