Georgia Federal Court Enjoins the Government from Enforcing the Federal Contractor Vaccine Mandate

On December 7, 2021, the federal district court docket for the Southern District of Georgia (the Court) issued a preliminary injunction stopping the authorities from implementing the vaccine mandate for federal contractors and subcontractors set forth in Govt Order 14042, in all coated contracts in any state or territory of the United States of America. This court docket order enjoined the solely remaining vaccine mandate applied below the Biden Administration’s plan for main the nation out of the COVID-19 pandemic. Notably, (i) on November 6, 2021, the Fifth Circuit ordered that the Occupational Security and Well being Administration (OSHA) halt enforcement of its Emergency Non permanent Commonplace (ETS), requiring giant employers of 100 or extra workers to mandate COVID-19 vaccinations or weekly testing, and (ii) on November 30, 2021, the U.S. District Court for the Western District of Louisiana issued a nationwide injunction of the Facilities for Medicare and Medicaid Companies (CMS) COVID-19 vaccine mandate. For extra details about the OSHA ETS and CMS injunctions, view the Foley article out there here.

The Georgia order enjoins solely federal enforcement of the COVID-19 vaccine mandate contract clause; it doesn’t, by its phrases, prohibit authorities contractors from voluntarily complying with the necessities of the clause by imposing a vaccine mandate on their workers. Nonetheless, authorities contractors that search to implement COVID-19 vaccine mandates on their workforce should bear in mind state legal guidelines which have banned vaccine mandates or positioned limits on vaccine mandates. Moreover, as a result of the Court’s order is just a preliminary injunction, the final deserves of the challenges to Govt Order 14042 haven’t but been decided, elevating the chance that the injunction may very well be contested by the authorities in the coming weeks and in the end lifted or stayed. Thus, authorities contractors now face a troublesome alternative as as to if to proceed with the vaccine mandates they’ve applied, to adjust to the necessities of their coated contracts, or to halt such actions pending remaining decision of the litigation difficult the federal contractor vaccine mandates.

Abstract of the Georgia Order

On October 29, 2021, the states of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia; the governors of a number of of these states; and numerous state businesses sought declaratory and injunctive aid towards the necessities of Govt Order 14042. Related Builders and Contractors, Inc. (ABC), a commerce group, additional sought to intervene on this go well with and acquire injunctive aid for its members. In contemplating these requests, the Court reiterated the Jap District of Kentucky’s sentiment from the same case dated November 30, 2021, that enjoined the federal contractor vaccine mandate in Ohio, Tennessee, and Kentucky. The Court famous that the effectiveness of the out there vaccines just isn’t at subject and acknowledged the “tragic toll that the COVID-19 pandemic has wrought throughout the nation and the globe.” Georgia v. Biden, No. 1:21-cv-163, at *2 (S.D. Ga., Dec. 7, 2021) (citing Kentucky v. Biden, No. 3:21-cv-55, 2021 WL 5587446, at *9 (E.D. Ky. Nov. 30, 2021)). But in the end the “Court [determined that it] must preserve the rule of law and ensure that all branches of government act within the bounds of their constitutionally granted authorities.” Id. In brief, the Court considered the federal contractor vaccine mandate as an overreach.

The Court held that the plaintiffs have a probability of proving that the Federal Property and Administrative Companies Act “did not clearly authorize the President to issue the kind of mandate contained in EO 14042, as EO 14042 goes far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead, in application, works as a regulation of public health, which is not clearly authorized under [the Act].” Id. The Court in the end decided that the plaintiffs “will likely succeed in their claim that the President exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act when issuing Executive Order 14042.” Id. The Court declined to restrict the utility of the injunction to the Southern District of Georgia or states in the Eleventh Circuit based mostly on the request for aid on behalf of ABC’s members, that are situated all through the United States.

Affect of the Order on Federal Contractors

The injunction prevents the authorities from implementing the necessities of Govt Order 14042 till the Court reaches a call on the deserves or in any other case points an order pertaining to the keep. On its face, it doesn’t forestall the authorities from persevering with to incorporate FAR clause 52.223-99, or one other deviation implementing Govt Order 14042, into federal prime contracts. Additional, the keep doesn’t expressly forestall prime contractors from persevering with to incorporate such clauses in subcontracts.

Notably, following the preliminary injunction issued by the Jap District of Kentucky, the Division of Protection issued a class deviation directing Contracting Officers to stop together with DFARS 252.223-7999 in solicitations and contracts that “may be performed, at least in part, in Kentucky, Ohio, and/or Tennessee.” Somewhat than ceasing to incorporate the FAR clause in its contracts, GSA added a press release to its website indicating that “GSA will not take any action to enforce FAR clause 52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors in all covered contracts or contract-like instruments being performed, in whole or in part, in Kentucky, Ohio, and Tennessee.”

It stays unclear how businesses will reply to this nationwide keep of the vaccine mandate, and whether or not they’ll stop together with the FAR/DFARS clauses in solicitations and contracts, or if they’ll proceed to incorporate the clauses however stop enforcement of the clauses. The latter strategy leaves contractors prone to being held to compliance with the FAR/DFARS clause in present contracts — and probably going through penalties for non-compliance — ought to the authorities in the end prevail in the litigation and have the injunction lifted.

Subsequent Steps for Federal Contractors

Contractors ought to carefully monitor bulletins by federal authorities businesses responding to this injunction. In the meantime, federal prime contractors and subcontractors ought to proceed to rigorously assessment solicitations, contracts, and contract modifications to find out if the federal authorities or higher-tiered contractors are incorporating FAR/DFARS vaccine clauses (e.g., FAR 52.223-99 and DFARS 252.223-7999), thereby making the contractor a “covered contractor” below Govt Order 14042 and the Safer Federal Workforce Task Force Guidance. If the injunction is lifted, coated contractors might want to proceed to adjust to the Job Power Steering, and it’s unclear presently whether or not and to what extent the authorities will lengthen the timeframe for compliance. For compliance obligations of coated contractors, assessment our prior article here.

Firms are also free to conform voluntarily with the federal contractor vaccine mandate and Job Power Steering however ought to search authorized recommendation earlier than imposing vaccine mandates on workers situated in states with countervailing laws.

Firms that need to keep away from turning into a coated contractor can and may search the elimination of the FAR/DFARS vaccine mandate clauses in solicitations, contracts, and contract modifications based mostly on the present injunction.

Co-authored by Megan Chester 

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