On December 7,2021, the COVID-19 vaccine mandate for Federal contractors (Executive Order 14042) was blocked nationwide by an order of the Federal District Court in Georgia. This ruling in Georgia, ordering the implementation of the mandate during the suspension of the case or until further order from the court, is the latest legal setback pertaining to the vaccine requirement. Multiple states have filed lawsuits in response to the mandates applicable to firms operating in both the private and public sectors, claiming, for various reasons, that the President does not have the authority under the Constitution or applicable law to require the vaccine. The mandate involved in this case, which was set to take effect on January 4 and impacts companies that do business with the Federal Government, applies to roughly a quarter of the U.S. workforce.
Pending a contrary ruling from the Eleventh Circuit or the U.S. Supreme Court, the federal government is barred from enforcing Executive Order 14042’s vaccine mandate in any state or territory. Given the potential that the injunction could be reversed, and the lack of clarity regarding what if any adjustments the federal government would make to the vaccine mandate in that event, contractors may wish to continue their preparations in order to avoid being caught off-guard. In addition, the court’s ruling does not prohibit federal contractors who wish to voluntarily implement their own vaccine requirement for their workforces from doing so, though the lack of an enforceable federal mandate means that such employers will need to carefully consider the effect of state laws which limit or prevent employers from requiring vaccination.
The General Services Administration (GSA) posted the following notice on December 7, 2021 on their COVID-19 webpage:
“Effective immediately, the Federal Government is prohibited from enforcing a vaccine mandate for contractors and subcontractors in all states and territories of the United States. GSA contracting officers shall not take any action to enforce the vaccination requirements in FAR clause 52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors in any contract or contract-like instrument.”
Further, GSA has confirmed that this means the following for GSA contractors:
1. Contractor and subcontractor employees do not have to meet the vaccination mandate in the Safer Federal Workforce Task Force Guidance
2. Contractors will continue to be eligible for new contracts, new orders, options, and extensions even if they have not agreed to follow FAR clause 52.223-99.
A useful resource in navigating the new Executive Order is “Sheppard Mullin’s Executive Order 14042 Survival Guide” which is continuously updated with new FAQ’s.
If you have any questions, please contact BH Sky for assistance.
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