Update: More Courts Temporarily Enjoin the Federal Contractor Vaccine Mandate
While no final decisions have been reached, the temporary, nationwide injunction of the federal contractor vaccine mandate remains in effect, after the Eleventh Circuit Court of Appeals denied the federal government’s attempt to stay the nationwide injunction issued by the Southern District of Georgia. The Eleventh Circuit has expedited the federal government’s appeal of the injunction order and has ordered that parties file their final briefs by January 24, 2022.
Meanwhile, separate injunctions have been entered by a Missouri federal magistrate on December 20, 2021, covering 10 states, and a Florida District Court on December 22, 2021, which enjoined the government contractor vaccine mandate for any covered contract in the State of Florida. Other federal court cases are pending in Arizona and Texas.
The government contractor injunctions are independent from separate challenges to the Occupational Safety and Health Administration (“OSHA”) “vaccine and test” mandate for employers of more than 100 employees, and the vaccine mandate issued by the Centers for Medicare & Medicaid Services (“CMS”) for employees at certain health facilities. The fate of the OSHA and CMS mandates likely will be decided by the United States Supreme Court, which has scheduled a special hearing on January 7, 2022 to hear arguments on these mandates.
Update: OMB Pauses Enforcement of Federal Contractor Vaccine Mandate In Light of Court Injunctions
On December 9, 2021, the Office of Management and Budget issued updated guidance to address the nationwide injunction that currently bars, on a preliminary basis, enforcement of the federal vaccine mandate.
For federal contracts or contract-like instruments that already include a clause implementing the requirements of Executive Order 14042 (i.e., FAR 223-99), agencies are to notify the contractor that "[t]he Government will take no action to enforce the clause" where the place of performance identified in the contract is a U.S. state or outlying area "subject to a court order prohibiting the application of requirements pursuant to the Executive Order."
As of December 14, 2021, all 50 States are subject to such a court order. The list of "Excluded States or Outlying Areas" is maintained on the Safer Federal Workforce website.
For federal contracts or contract-like instruments that do not include the clause, "the agency must not attempt to add a clause implementing the requirements of the Executive order into the contract" if the contract is performed entirely in an Excluded State or Outlying area.
For all other federal contracts or contract-like instruments, when exercising an option, issuing a new order under the contract, or extending the term of the contract, "the agency must pursue bilateral modification to the contract to include the clause." The agency may pursue bilateral modification to include the clause in existing contracts.
Solicitations should not include the clause implementing Executive Order 14042 if the work under the contract will be performed entirely in an Excluded State or Outlying Area. If the solicitation does include such a clause "the agency must remove it through an amendment to the solicitation."
The OMB notes that current court orders are preliminary and may be modified or vacated as litigation proceeds.
Update: Nationwide Preliminary Injunction Bars Enforcement of Vaccine Mandate for Federal Government Contractors
The enforceability of the federal contractor vaccine mandate has not been finally decided. On December 7, 2021, a federal court for the Southern District of Georgia entered an injunction "with nationwide applicability" enjoining the enforcement of the federal contractor vaccine mandate. The Court determined on a preliminary basis that the Executive Order exceeded the power delegated by Congress to the President to administer federal procurement.
Most Federal Government Contractors Still Must Comply With President Biden's Vaccine Mandate
Despite a recent court ruling covering three states, most federal government contractors still must comply with the COVID-19 vaccine mandate ("Contractor Vaccine Mandate") included in President Biden’s Executive Order 14042, "Ensuring Adequate COVID Safety Protocols for Federal Contractors" and accompanying rules.
Compliance includes meeting the January 18, 2022 extended deadline for employees of applicable contractors to be "fully vaccinated" under E.O. 14042, as determined by the Safer Federal Workforce Task Force COVID-19 Workplace Safety, and published in its Guidance for Federal Contractors ("Vaccine Guidance") and Frequently Asked Questions ("FAQ").
Navigating the Legal Challenges to the Three Federal Vaccine Mandates
There are three federal COVID-19 vaccination mandates: (i) the Contractor Vaccine Mandate applicable to federal contractors; (ii) the U.S. Occupational Safety and Health Administration ("OSHA") Emergency Temporary Standard ("ETS") applicable to employers with 100 or more employees; and (iii) the Centers for Medicare and Medicaid Services ("CMS") mandate applicable to certain healthcare workers.
Legal challenges have been launched against all three mandates, and these cases are still at preliminary stages. Separate courts have issued orders that temporarily stay -- nationwide -- implementation and enforcement of the OSHA ETS and the CMS healthcare mandate. These are not final decisions, and litigation regarding these two mandates will continue. In the meantime, while continuing to defend the ETS, OSHA has decided to "suspend" enforcement of the ETS pending the results of litigation.
Federal government contractors are not impacted by the orders staying the OSHA or CMS vaccine mandates. Currently, there are several cases challenging the Contractor Vaccine Mandate. Thus far, the Contractor Vaccine Mandate remains in effect, except for "federal contractors or subcontractors in all covered contracts in Kentucky, Ohio and Tennessee." A Kentucky federal court temporarily halted enforcement of the Contractor Vaccine Mandate in these three states after finding, on a preliminary basis, that the Contractor Vaccine Mandate exceeded the President’s Congressionally-delegated authority to administer federal procurement. Other federal courts have refused preliminary motions to suspend or stay the Contractor Vaccine Mandate.
Also, several states have passed legislation attempting to ban outright (or limit) the scope of the Contractor Vaccine Mandate. But the Constitution’s Supremacy Clause suggests that these state and local laws may not be effective, and the federal government has taken the position in the "Compliance" section of the FAQ that the Vaccine Guidance supersedes contrary laws, except for those that "establish more protective workplace safety protocols" than required by the Contractor Vaccine Mandate.
January 18, 2022 Deadline for "Full Vaccination"
Since the Contractor Vaccine Mandate and the Vaccine Guidance remain in effect for most of the country, many covered federal government contractors are preparing to comply with their requirements.
The November 10, 2021 updates to the Vaccine Guidance and FAQ extended the deadline until January 18, 2022 for covered contractor employees to be fully vaccinated. After January 18, all covered contractor employees must be fully vaccinated by the first day of performance on a newly-awarded covered contract, on an exercised option, or on extended or renewed contracts when the clause has been incorporated into the contract. An agency head can approve a 60-day extension of the vaccination deadline in cases of "urgent, mission critical need" for contractor performance to begin.
"Fully Vaccinated" as Currently Defined
Under the current version of the FAQ, employees will be considered "fully vaccinated" two weeks after receiving the requisite number of doses of a COVID-19 vaccine approved or authorized for emergency use by the FDA or the World Health Organization. For Pfizer-BioNTech, Moderna or AstraZeneca/Oxford, this means two weeks after receiving the second dose in a two-dose series; for Johnson and Johnson (J&J)/Janssen, this means two weeks after receiving a single dose. Clinical trial participants who receive both shots of the Novavax COVID-19 vaccine are also considered "fully vaccinated" two weeks after they have completed the vaccine series. The definition of "fully vaccinated" in the FAQ may further change given the FDA’s recent approval of the use of "booster" shots.
Applicable Contracts, according to the Executive Order
E.O. 14042 applies to specific contracts or contract-like instruments, including: (i) services, construction, or leasehold interests in real property; (ii) service contracts covered by the Service Contract Act; (iii) concessions; and (iv) contracts for services for federal employees, their dependents, or the general public in connection with federal property or lands.
From a timing standpoint, E.O. 14042 applies to: (i) contracts entered into after November 14, 2021, for solicitations issued before October 14, 2021; (ii) new solicitations issued on or after October 15, 2021 and contracts awarded pursuant thereto (or orders issued pursuant to indefinite-delivery contracts); (iii) extensions or renewals of contracts awarded on or after October 15, 2021; and (iv) options on existing contracts and orders exercised on or after October 15, 2021.
E.O. 14042 excludes: (a) federal grants; (b) contracts with Indian Tribes; (c) employees who perform work outside of the U.S.; (d) contracts with a value equal to or less than the simplified acquisition threshold (currently $250,000); and (e) subcontracts solely for the provision of products.
Some Agencies Have Expanded the Mandate Beyond the Terms of the Executive Order
The Federal Acquisition Regulation ("FAR") clause that contractually enforces the Contractor Vaccine Mandate, FAR 52.223-99, must be included, or "flowed down," to subcontractors at all tiers where the prime contract is a covered contract. In addition, certain "Class Deviations" issued by agencies further expand the applicability of Contractor Vaccine Mandate to existing government contracts, to contracts for the manufacture or delivery of goods and to contracts above the micro-purchase threshold, which currently is $10,000. Government contractors, in other words, cannot determine their compliance requirements only by reading the text of E.O. 14042; contractors also must consult the FAR clause and the applicable Class Deviations.
Who Is a "Covered Contractor Employee"?
The definition of "covered contractor employees" includes full-and part-time employees of a "covered contractor" working on or in connection with a covered contract, which will include administrative employees who provide contract support, such as human resources and finance personnel. According to the FAQ’s section on Workplaces, "[a]n individual working on a covered contract from their residence is a covered contractor employee, and must comply with the vaccination requirement for covered contractor employees, even if the employee never works at either a covered contractor workplace or Federal workplace during the performance of the contract." Employees who work exclusively outdoors also are considered to be "covered employees" along with any other employees who may come into contact with covered employees in the same workplace.
Employer Accommodations for Disability or Religion
Employers are allowed, and under federal civil rights laws are required, to consider requests for accommodations based on disability status, under the Americans with Disabilities Act, as amended, or for sincerely held religious beliefs, under Title VII of the Civil Rights Act of 1964, as amended.
Proof of Vaccination Status
Employers must require each vaccinated employee to provide acceptable proof of vaccination status. The Vaccine Guidance delineates what will constitute acceptable proof. Employers are advised to retain in a separate medical file copies of the proof of vaccination status that each employee provides.
Masking and Physical Distancing Requirements
Covered contractors are required to comply with CDC masking and physical distancing requirements in the "covered contractor workplace." This includes, per current CDC guidance, universal mask wearing indoors in areas of high or substantial community transmission of COVID-19, and mask wearing for those not fully vaccinated in most locations, regardless of the level of community transmission. "Covered contractor workplaces" are locations controlled by a covered contractor at which any employee working on or in connection with a covered contract is likely to be present.
Although fully remote, "covered" employees must comply with the Contractor Vaccine Mandate, a covered contractor employee’s residence is not a "covered contractor workplace," so the masking and social distancing requirements need not be followed by the employee in the employee’s own home. Accommodations may be required for covered contractor employees who advise their covered contractor employer that they cannot wear a mask because of disability or sincerely-held religious beliefs. Covered contractors also may provide for exceptions consistent with CDC guidelines.
Vaccine Guidance Implementation and Compliance Coordinators
Covered contractors must designate a person or persons to coordinate implementation and compliance with the Vaccine Guidance. This person must ensure that employees provide proper vaccination documentation and must advise employees and others likely to be present at covered contractor workplaces regarding the Vaccine Guidance requirements (including the posting of signage at entrances to affected workplaces). The designated person must document in writing any approved exceptions to compliance with the Vaccine Guidance.
"Good Faith" Compliance by Employers
The current FAQ recommends that contracting officers "work with" covered contractors who are "working in good faith and encounter challenges with COVID-19 workplace safety protocols." If covered contractors refuse to comply with the Vaccine Guidance, "significant action," including contract termination, will be considered.
Voluntary Employer Vaccination Mandates
Nothing in the Contractor Vaccine Mandate prevents an employer from imposing stricter standards than those imposed under this federal Contractor Vaccine Mandate.
As described above, the legal fate of the Contractor Vaccine Mandate is unclear. More changes to the Vaccine Guidance and FAQ are expected. Whether affected government contractors can recover increased costs resulting from compliance with the mandate is unclear. Contractors need to consult with Class Deviations issued by their agencies, review the most recent FAQ, and actively communicate with their government customers if they face challenges complying with these requirements.
If you have any questions related to this alert, please do not hesitate to contact your regular Smith Anderson lawyer or any other member of our firm. Additionally, please visit and bookmark our firm’s Coronavirus (COVID-19) Business Resource Center which is continuously updated with useful materials and resources related to COVID-19. This tool has been made available to ensure that our clients and the broader business community stay informed on key issues that may impact their operations and to navigate the related business and legal issues during these challenging times.