Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On Tuesday, December 7, 2021, the U.S. District Court for the Southern District of Georgia issued an order enjoining the president, the Safer Federal Workforce Task Force, and 18 executive agencies and departments from enforcing the vaccine mandate that was established for federal contractors pursuant to Executive Order 14042 (“E.O. 14042” or the “Order”). This decision from Georgia comes after the U.S. District Court for the Eastern District of Kentucky on November 30, 2021, issued an order granting a preliminary injunction to block enforcement of E.O. 14042 in all covered contracts in Kentucky, Ohio, and Tennessee.
While the Georgia court acknowledged “the tragic toll that the COVID-19 pandemic has wrought throughout the nation and the globe,” it ordered that “Defendants are enjoined, during the pendency of this action or until further order of this Court, from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.”
In the court’s analysis, it concluded that each of the four requirements for issuing a preliminary injunction were met: (1) a substantial likelihood of ultimate success on the merits; (2) an injunction is necessary to prevent irreparable injury; (3) the threatened injury outweighs the harm of the injunction; and (4) the injunction would not be adverse to the public interest.
Movants Have a Substantial Likelihood of Ultimate Success on the Merits
The court reasoned the plaintiffs1 were likely to succeed on the merits because it was “unconvinced, at this stage of the litigation” that the Procurement Act authorized the president to issue E.O. 14042.2 The court reasoned Congress did not “clearly” authorize the president to issue E.O. 14042 as it goes far beyond addressing administrative and management issues and the Order does not have a sufficient nexus to the purposes of the Procurement Act—i.e., to promote efficiency and economy in procurement and contracting. Even though the president is entitled to a degree of deference when acting pursuant to the Procurement Act, the court reiterated the analysis of the U.S. District Court in Kentucky and found that defendants have not “cited to a case upholding the use of the Procurement Act to promulgate such a wide and sweeping public health regulation as mandatory vaccination for all federal contractors and subcontractors.”
Preliminary Injunction Prevents Irreparable Harm
The court further found that the plaintiffs established that the time and effort spent on complying with E.O. 14042 in the past and going forward—e.g., to identify employees covered by the mandate, implement a process to ensure covered employees are fully vaccinated or have been granted a legal exemption, and require subcontractor employees working on the contract comply with its requirements—constitute compliance costs that appear to be irreparable. The court noted that “complying with a regulation later held invalid almost always produces the irreparable harm of nonrecoverable compliance.”
Threatened Injury Outweighs the Harm the Preliminary Injunction
The court also held the balancing of harms weighed in favor of an injunction because entities are still free to encourage their employees to get vaccinated, and employees are still free to choose to be vaccinated, but with a preliminary injunction in place, the plaintiffs will not be required to significantly alter their ability to perform federal contract work, which is critical to their operations.
Public Interest Favors a Preliminary Injunction
The court found the last prong—public interest—was in favor of granting a preliminary injunction because “[f]rom economic uncertainty to workplace strife, the mere specter of [E.O. 14042] has contributed to untold economic upheaval in recent months” and “the principles at stake when it comes to [E.O. 14042] are not reducible to dollars and cents.”
Scope of the Preliminary Injunction
While the court recognized that the original plaintiffs are only in Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia, it found that because it had permitted a trade organization with members all over the country to intervene as a plaintiff, a nationwide injunction was required in order protect all of the members of that organization. Therefore, the court granted the first nationwide injunction on the federal contractor mandate under E.O. 14042.
Currently—pending further action by the courts—the vaccine mandate for covered federal contractors and subcontractors may not be enforced anywhere in the nation by any of the defendants named in this action. The FAR Deviation Clause incorporated into federal contracts and subcontracts is not void but simply not going to be enforced pending resolution of the legal issues. Therefore, federal contractors and subcontractors are not currently required to take action to comply with the January 18, 2022 deadline by which all covered employees were to be fully vaccinated. However, employers may still choose to adopt voluntary vaccine mandates applicable to employees but must be cognizant of the states that have adopted laws limiting or banning vaccine mandates. In addition, it is still possible that higher-tier contractors could choose to enforce provisions that they negotiated with subcontractors, particularly in situations in which such an agreement was not required pursuant to the Order and the contract was entered into in a jurisdiction that does not limit vaccine mandates.
Given the language of the injunction, it would appear that other provisions of the federal contractor COVID-19 workforce safety mandates remain in place. Accordingly, contractors and subcontractors that have accepted the FAR Deviation Clause may remain subject to the requirements regarding masking and social distancing in the workplace.
We expect the federal government to appeal the court’s order to the 11th Circuit. Littler will continue to monitor these developments and provide periodic updates as new petitions and rulings develop.
1 The plaintiffs included seven state governors, a number of state agencies, and a national trade association that successfully moved to intervene.
2 The court declined to issue a determination as to whether the Task Force Guidance and the FAR Deviation Clause complied with the Administrative Procedure Act’s notice-and-comment requirements and whether the Order is unconstitutional under the non-delegation doctrine because it exceeds Congress’ authority and intrudes on state sovereignty.