On December 7, 2021, the U.S. District for the Southern District of Georgia in Georgia v. Biden, No. 1: 21-cv-163, an injunction temporarily suspending the Biden government’s vaccine mandate for federal contractors and subcontractors. in a state or territory of the United States of America. “The case was originally filed by Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia. The Associated Builders and Contractors (ABC), a national trade organization, intervened on Pages Plaintiff. The seven states and ABC filed for an injunction to repeal Executive Order (EO) 14042 and its related FAR clauses and guidelines, which require federal contractors and subcontractors to provide proof of vaccination to their employees or to work in conjunction with federal contracts, including imposing masking requirements and distance rules. The court issued the injunction and suspended the federal vaccine mandate nationwide.
The court order follows a restraining order from the Kentucky federal court that last week issued an injunction to cancel the vaccine mandate for federal contractors only in Kentucky, Tennessee and Ohio. The Georgia v Biden judgment issued a statewide restraining order.
Justification of the court
First, the court found that states could likely prove that Congress did not clearly authorize President Biden to issue EO 14042 under the Federal Property and Administrative Services Act (FPASA). FPASA authorizes the President to prescribe any guidelines or directives he deems necessary to promote “economy” or “efficiency” in federal procurement; However, the court concluded that EO 14042 “goes well beyond addressing administrative and management issues to promote efficiency and economy in procurement and procurement” and in effect acts as a public health regulator that is not clearly approved under the FPASA is. The court also found that states could likely show that EO 14042 is insufficiently related to the purposes of FPASA and therefore does not fall within the powers actually granted to the President under FPASA.
Second, the court found that the amount of time and effort that federal contractors have spent in the past (and will spend in the future) implementing a vaccine mandate represents irreparable compliance costs resulting from EO 14042.
Third, when weighing the damage, the court found the following:
The requirement of EO 14042 would essentially do nothing more than maintain the status quo; Companies will remain free to encourage their employees to vaccinate and employees will remain free to choose whether to be vaccinated. In contrast, refusing to issue an injunction would force plaintiffs to honor the mandate and make decisions that would significantly alter their ability to carry out federal contract work that is critical to their business.
In determining the scope of interim relief, the court concluded that full injunctive relief required a state-wide injunction and found that ABC members are “nationwide”. The court also recognized that a statewide restraining order was needed to avoid further confusion, given that the seven states are involved in federal contracts at the national level and EO 14042 applies to subcontractors.
What this means for federal contractors and subcontractors
An injunction is issued after plaintiffs determine they are likely to be successful on the matter, but before a court has made a final decision on the matter. The Georgia court’s issuance of an injunction is not a definitive determination on the merits. The development of the pending case should be closely monitored – in the Georgia case, there is more information on the likely countermotions for summary judgment. Should the court’s final decision reflect its restraining order, it is very likely that the Biden administration will appeal to the U.S. Court of Appeals for the Eleventh District. In other words, there is likely to be a long way to go in the legal challenges against EO 14042.
In the meantime, due to the nationwide scope of the injunction, the vaccine mandate of the federal administration of Biden has been suspended. The January 18, 2022 compliance deadline is likely to be ineffective for the time being as the government cannot “enforce” the vaccine mandate.
Federal contractors and subcontractors should also note that neither this Georgia decision nor the previous Kentucky decision addressed the other requirements of EO 14042 such as masking, social distancing, or responsible person requirements. The court only ordered “the vaccination mandate”. Since masking and distancing were not mentioned, these aspects are presumably not required by EO 14042. But that is currently unclear. Federal contractors and subcontractors are encouraged to follow these other requirements insofar as they are listed in their contracts and do not conflict with any applicable state or local law.
Contractors and subcontractors should also look for additional government guidance. Shortly after the Georgia v. Biden, the US General Services Administration issued the following guidelines:
To update: On December 7, 2021, the United States District Court for the Southern District of Georgia issued an injunction. . . which will stop enforcement of the vaccine mandate for contractors and subcontractors across the country.
What does that mean?
With immediate effect, the federal government is prohibited from enforcing a vaccination mandate for contractors and subcontractors in all states and territories of the United States. GSA’s authorized agents are not allowed to take any enforcement action the vaccination requirements in FAR clause 52.223-99 ensuring adequate COVID-19 security protocols for federal contractors in every contract or contract-like instrument.
What does it mean to “not enforce” the clause?
Contractor and subcontractor employees are not required to complete the vaccination mandate in the Task Force Guidance Safer Federal Workforce
Contractors will continue to be entitled to new contracts, new orders, options and renewals even if they have not agreed to comply with FAR clause 52.223-99.
Further updates will be released as more information becomes available.
In response to the closer injunction from the previous Kentucky court, the Office of Management and Budget, which is reflected in guidelines such as an updated class deviation from the U.S. Department of Defense, ordered the authorities to exempt the application of the EO 14042 FAR (DFARS) clause and suspend tenders and contracts that are carried out in whole or in part in the three states concerned. If OMB issues similar guidelines in response to this new nationwide injunction, authorities can halt efforts to include new contractual clauses or enforce clauses already in federal treaties pending final settlement of the ongoing litigation.
Federal contractors and subcontractors should also keep in mind that the Georgia Court order applies only to the federal government. The court order does not prohibit contractors and subcontractors from voluntarily adhering to EO 14042 or transferring the clauses to subcontractors as long as they also comply with applicable state and local law.
Finally, contractors and subcontractors should be aware of potential obligations to negotiate with unions over voluntary vaccine requirements, as continued compliance with EO 14042 during the injunction could complicate a company’s collective bargaining obligations. If compulsory vaccination was a legal obligation, then employers were likely to have at most an obligation to negotiate the implications and implementation of the legal obligation. After EO 14042 was decreed and is temporarily no longer a legal obligation, the imposition of a vaccination mandate for employees of the collective bargaining unit can be completely subject to collective bargaining.
Contact us
We anticipate many fast-paced changes in this case and other federal cases across the country that will challenge the legality of the federal contractor’s COVID guidelines and contractual clauses. We’ll update as development calls for it. In the meantime, please contact Michael Schrier or your Husch Blackwell attorney.
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