On August 26, 2022, the U.S. Court of Appeals for the Eleventh Circuit upheld a lower court’s injunction of Executive Order 14042, President Biden’s executive order requiring employees working on federal government contracts to be vaccinated for COVID-19 (the “contractor mandate”), but narrowed the scope of the injunction from applying nationwide to now applying only to those plaintiffs in the case (seven states, and members of the national trade association Associated Builders and Contractors (ABC), which intervened in the case).  With the narrowing of this injunction, the status of the government’s enforcement plans for the contractor mandate is not yet clear. Several different injunctions have been imposed in different states and additional lawsuits will likely be filed if enforcement of the mandate resumes in those states that are not subject to one of the other injunctions already granted by other courts and still in place. As of this writing, the federal government appears to be maintaining its non-enforcement posture of the contractor mandate on a nationwide basis.  Whether this will change is not yet clear.

Background

In July 2021, President Biden announced new requirements for federal employees and onsite federal contractors regarding vaccination, masking, and social distancing.  The president subsequently issued an executive order requiring that federal agencies add to their contracts and solicitations a requirement that federal contractors and subcontractors obtain proof that their employees working on or in connection with federal contracts are vaccinated for COVID-19.

A number of states sued the federal government to enjoin the contractor mandate and ABC subsequently intervened in the action.  On December 7, 2021, the U.S. District Court for the Southern District of Georgia became the first court to enjoin the contractor mandate on a nationwide basis. In its order, the lower court it determined that: (a) injunctive relief was warranted insofar as the plaintiffs were likely to succeed on the merits of their claim that the subject executive order exceeded the limits of the president’s authority under the federal Procurement Act (also known as the Federal Property and Administrative Services Act); and (b) a nationwide injunction was necessary to afford effective injunctive relief, insofar as ABC members are located throughout the country, as are various contractors and subcontractors who may contract with businesses in the plaintiff states.

Eleventh Circuit Decision

On August 26, 2022, the Eleventh Circuit upheld the district court’s reasoning that plaintiffs were likely to succeed on the merits of their claim (that the contractor mandate was not within the authority of the president to issue under the Procurement Act), and that the plaintiffs had made the requisite showing to justify injunctive relief, but narrowed the court’s nationwide injunction to apply only to those plaintiff states and trade association ABC.  In doing so, the court of appeals noted that nationwide injunctions are generally disfavored and stressed the value of consideration of these issues by other courts.  Indeed, as of this writing, a number of challenges to the contractor mandate remain pending in federal district or appellate courts.  Still other courts deferred ruling on requests for injunctive relief, citing the U.S. District Court for the Southern District of Georgia’s imposition of the nationwide stay.  The outcomes of these cases are yet to be determined.

Non-Enforcement Policy

The Eleventh Circuit’s narrowing of the injunction from a nationwide stay to a more limited one may have limited practical impact at this time, however.

Shortly after the executive order was initially enjoined, the federal government announced via the Safer Federal Workforce website that it would not attempt to enforce the order in light of the court’s injunction. As of August 31, the government appears to be maintaining that non-enforcement posture.  Under the heading “What’s New” (dated August 31, 2022), appears the following:

Regarding Applicable Court Orders and Injunctions: To ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified, or vacated, depending on the course of ongoing litigation, the Federal Government will take no action to implement or enforce Executive Order 14042. For existing contracts or contract-like instruments (hereinafter “contracts”) that contain a clause implementing requirements of Executive Order 14042, the Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency.

This does not mean that the government will never enforce the contractor mandate; indeed, such a change could occur at any time. But if that occurs then more lawsuits challenging the mandate can be expected.  Federal contractors, particularly those in states where the contractor mandate was not enjoined by a different court, will want to keep a close eye on developments, as well as any change in federal enforcement policy.

Littler’s Workplace Policy Institute will keep readers informed of relevant developments.