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Vaccine Mandate Update for Federal Contractors

Dec. 21, 2021, 9:00 AM

Federal contractors spent the autumn grappling with implementing Executive Order 14042, one of the White House’s actions taken to help end the Covid-19 pandemic. The EO requires many contractors to follow several safety protocols that most notably include ensuring employees working on or in connection with performance of EO-covered federal contracts are fully vaccinated.

Agencies rolled out the requirements quickly, at times incompletely, and in some circumstances more broadly than the EO’s own text required. State-level efforts to restrict or prohibit vaccination mandates only added to the complexity for federal contractors.

Many segments of the economy were affected by the EO and related state-level provisions, ranging from the traditional defense industrial base to more commercially oriented companies that happened to have a small number of federal contracts or subcontracts.

Legal challenges to the EO followed. Currently, four federal courts have issued orders barring the government from enforcing the vaccination requirements. One order from a court in Kentucky covered all federal contracts in three states, while the other, from Georgia, applied nationwide. Additional orders from Louisiana and Missouri followed.

The government has put on hold its implementation and enforcement of requirements for covered employees to be fully vaccinated by mid-January. But vaccination requirements and EO 14042 compliance generally aren’t turned on and off like a desk lamp. Federal contractors should thus spend some time carefully considering vaccination requirements and associated litigation as we wrap up 2021 and head into 2022.

The Government’s Response to the Court Orders

With multiple lawsuits challenging the requirements of Biden’s EO filed in recent months, contractors might have worried that tracking and applying any injunctions against enforcement could resemble the classic game Twister. (“Right foot, no masking or vaccinations in five states . . .”) Two developments have streamlined matters.

One was the Georgia court’s decision to apply its injunction to contracts nationwide. The other was that the government’s decision to direct agencies not to enforce EO 14042’s requirements in full even though the first two court orders (Kentucky and Georgia) referred only to the contractor “vaccine mandate.”

Next Steps in the Court Challenges

The court orders from Kentucky and Georgia were preliminary injunctions granted very early in those cases, which will now proceed to develop full record for a decision on the merits. (The plaintiffs will, of course, be seeking to make the preliminary injunctions permanent.) The Louisiana case is largely on hold for now, in contrast.

Several other federal courts are considering similar requests for injunctions against EO 14042 enforcement. Decisions from those courts could come at any time, though the pace might slow a bit now that there is an injunction already applicable nationwide.

The federal government is also seeking reversal of the Kentucky and Georgia orders, and has asked that the lower courts’ preliminary injunctions be paused while the government argues for their reversals. Similar requests regarding the Louisiana order are likely to follow.

Either a stay or a reversal could make the EO’s vaccination requirements applicable again, though how and in what geographic areas will depend on the specific courts and circumstances. If these events do occur, contractors can monitor the Safer Federal Work Force Task Force’s website for updated guidance.

Looking Ahead for Federal Contractors

By now, contractors should have received notices from their agency and higher-tier contractor customers that EO 14042 enforcement is on hold nationwide. Contractors that haven’t yet been contacted should consider reaching out for these confirmations.

Confirming the non-enforcement is beneficial even for companies that have decided to keep requiring vaccinations—it heads off confusion about what actions are or are not contractual requirements for the company and subcontractors.

Contractors can indeed consider whether to keep requiring vaccinations. The nationwide injunctions have, in a sense, returned companies to the mid-September status quo. The federal government is not requiring contractors to have certain employees vaccinated as a contractual obligation, but nor are they prohibiting contractors from setting such requirements independently. And the general rule is that employers can require vaccinations, subject to state law and collective-bargaining obligations.

However, the relevant state laws have seen significant changes in recent months. Contractors now must factor in the several states that have passed laws or taken other action to constrain employers’ abilities to require vaccinations.

Examples range from barring vaccination requirements to broadening possible exemptions well beyond the familiar religious and medical accommodations contemplated under federal law. Contractors with employees in those states should consult with employment counsel about whether existing company vaccination requirements might need adjustments.

Contractors should also consider whether their employees perform on-site at federal offices and similar facilities. Since the summer, many federal agencies have required contractor personnel and other visitors to attest whether they have been fully vaccinated, with those who have not been (or who decline to answer) required to follow protocols such as masking, distancing, and testing.

These requirements so far remain in place even with the district court injunctions. Discussing these protocols with employment counsel would be prudent for contractors performing on-site in those states now limiting vaccination requirements. There may be nuances to following state law while satisfying agencies’ on-site requirements.

All contractors nationwide would be well served by reminding employees of these on-site requirements to limit confusion and surprise, particularly for employees who may have taken time off around the holidays and will be returning to the federal customer site in the new year.

If nothing else, those conversations can reinforce that while views on vaccinations certainly do vary, the Covid-19 pandemic will continue to pose managerial, operational, and legal challenges for all contractors into 2022.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owner.

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Craig Smith is a partner in Wiley’s Employment & Labor and Government Contracts practice. He counsels and represents government contractors and subcontractors on a broad range of government contracting issues.