The COVID-19 Vaccine Mandate Roller Coaster Continues: The 11th Circuit Ends the Nationwide Injunction of the Government Contractor Vaccine Mandate

Introduction

COVID-19 vaccine mandates have been among the most divisive issues in the United States in recent times. This has resulted in extensive litigation challenging the legitimacy of various vaccine mandates, particularly those mandating that private employers require their employees to be vaccinated against COVID-19. Executive Order (“EO”) 14042, Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, has been at the forefront of these lawsuits. If not enjoined, EO 14042 requires covered federal contractor employees to be fully vaccinated against COVID-19. We have discussed the scope of EO 14042 and the implementing Safer Federal Workforce Task Force (the “Task Force”) Guidance here, here, and here.

On December 7, 2021, the US District Court for the Southern District of Georgia issued a nationwide preliminary injunction prohibiting the government from enforcing EO 14042’s vaccine mandate—the only nationwide injunction issued to date.¹ The government appealed the injunction. On August 26, 2022, the US Court of Appeals for the Eleventh Circuit issued its decision, which has two significant impacts. First, the 11th Circuit is the first appellate court to address the legality of EO 14042 and affirmed that the vaccine mandate is likely unlawful. Second, the 11th Circuit narrowed the nationwide preliminary injunction to effectively cover only the parties to the litigation.² The government is now enjoined from (1) enforcing EO 14042’s vaccine mandate against the plaintiff states (Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia) “and members of the Associated Builders and Contractors”; and (2) considering whether any offeror (not just the plaintiffs and their members) complies with the vaccine mandate when evaluating proposals and awarding contracts in procurements where one of the plaintiffs is an offeror.

Presuming the government takes the opportunity to renew enforcement, this means that every contractor will be required to comply with EO 14042’s vaccine mandate unless they (a) are one of the plaintiff states; (b) are a member of Associated Builders and Contractors, Inc. (“ABC”); (c) are covered by a different injunction; or (d) file a separate lawsuit and obtain injunctive relief. It also means that, unless one of the plaintiff states or an ABC member is competing in a procurement, agencies may consider an offeror’s compliance with EO 14042 when evaluating proposals.

Status of Litigation Challenging EO 14042

State governments have led the fight against the federal contractor vaccine mandate, with one trade organization joining in Georgia v. Biden. Despite commentary that the mandate would be hard to challenge, those lawsuits have succeeded almost universally.³ Those courts have held that President Biden exceeded his authority under the Federal Property and Administrative Services Act of 1949 (“FPASA”), which is the statute cited in EO 14042 as granting the authority to require COVID-19 vaccination. Below is a chart summarizing the various injunctions and pending cases:

The 11th Circuit’s Decision in Georgia v. Biden

The most significant decision in this area has been the Georgia v. Biden decision from the US District Court for the Southern District of Georgia, which preliminarily enjoined enforcement of the COVID-19 vaccine mandate nationwide, as amended by the new decision from the 11th Circuit.⁴ The basis for extending the injunction nationwide was that ABC, which is a construction trade organization with members performing federal contracts across the country, would not be adequately protected through a narrower injunction.⁵

The 11th Circuit agreed with the district court that a preliminary injunction was appropriate because, among other findings, the plaintiffs are likely to succeed on the merits and obtain a permanent injunction.⁶ But following a detailed discussion of the propriety of nationwide injunctions and principles of how the federal judiciary should operate, the court held that a nationwide injunction was overbroad.⁷ The government is now enjoined from (1) enforcing EO 14042’s vaccine mandate against the plaintiff states (Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia) “and members of the Associated Builders and Contractors”; and (2) considering whether any offeror (not just the plaintiffs and their members) complies with the vaccine mandate when evaluating proposals and award contracts where one of the plaintiffs is an offeror.⁸

Implications of the 11th Circuit’s Decision in Georgia v. Biden

• Do I have to comply with EO 14042 and FAR 52.223-99? Maybe. The first step is to assess which of your contracts incorporate FAR 52.223-99, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (OCT 2021) (DEVIATION). If one or more of your contracts incorporates FAR 52.223-99, consider whether you fall within the scope of any of the existing injunctions. If one or more contracts incorporate FAR 52.223-99 and none of the injunctions apply, then you should expect to be required to comply with the vaccine mandate. Of course, contractors (or prospective contractors, assuming they can establish standing) can file their own lawsuits, intervene in existing lawsuits, or try to enlist an industry organization of which they are a member to file a lawsuit challenging EO 14042.
• But didn’t the Office of Management and Budget (“OMB”) issue guidance stating that it was not enforcing EO 14042 and FAR 52.223-99? Sort of. OMB stated: “The Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a US state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order (hereinafter, “Excluded State or Outlying Area”). In all other circumstances, the Government will enforce the clause, except for contractor employees who perform substantial work on or in connection with a covered contract in an Excluded State or Outlying Area, or in a covered contractor workplace located in an Excluded State or Outlying Area.” Thus, OMB’s guidance barring enforcement of EO 14042 turns on whether covered contractor personnel fall within the scope of an injunction. Although this statement can be read as suggesting that an updated written notice of enforcement is a prerequisite to enforcement actions, relying on that interpretation carries risks and may not provide an adequate defense to enforcement.
• When will the government start enforcing the vaccine mandate? The government could begin enforcing the vaccine mandate immediately. The injunction did not bar agencies from including FAR 52.223-99 in contracts; it only prohibited enforcement against contractors that have not met the vaccination requirements.⁹ Thus, the government could, at least in theory, begin enforcing FAR 52.223-99 immediately for all contractors subject to FAR 52.223-99 and not covered by an injunction. We would, however, expect some level of agency flexibility and anticipate OMB will issue further guidance following the 11th Circuit decision.
• What if my state prohibits employer vaccine mandates? This question involves complex principles of preemption. In the government contracting context, federal law—including lawful executive orders—will control over state law under the concept of so-called “field preemption.”¹⁰ The Supreme Court has held that that the US government’s interests in its contracts are so unique and pervasive “that obligations to and rights of the United States under its contracts are governed exclusively by federal law.”¹¹ Thus, contractors must either challenge the enforceability of EO 14042 or, alternatively, challenge any state enforcement action as preempted by EO 14042.
• The 11th Circuit’s decision may result in other injunctions being adjusted. Although no other court has issued a nationwide injunction, the 11th Circuit’s decision resulted in an injunction that is narrower than other existing injunctions. As shown in the chart above, certain courts have gone beyond enjoining enforcement of EO 14042’s vaccine mandate against the specific plaintiffs to entire states. The 11th Circuit could have narrowed the injunction from a nationwide injunction to a state-specific injunction. Instead, the 11th Circuit made the injunction party specific. Will other circuits follow the 11th Circuit’s lead by narrowing injunctions that prohibit enforcement in a specific state to only specific parties? Or will other courts broaden their injunctions to cover parties and states that the 11th Circuit decision now omits from its coverage? Time will tell.
• There likely will be further litigation following the 11th Circuit’s decision. Now that the nationwide injunction has been lifted, contractors should expect further litigation. There are existing cases that were stayed while the nationwide injunction was in effect.¹² There may also be new lawsuits filed by additional states, contractors, trade and industry organizations, and potentially individual contractor employees. It is possible that another court will enjoin enforcement nationwide (particularly a court in a different circuit), but contractors that cannot readily comply without material adverse effects on their companies may consider whether it is in their interests to join the litigation.

Updated Guidance from the Safer Federal Workforce Task Force

On August 17, 2022, the Task Force issued revised guidance for federal agencies, and further revised guidance may be forthcoming. Below are key points from the revised guidance that are most relevant to contractors. With the nationwide injunction lifted, this guidance may signal upcoming changes to the Task Force’s guidance for federal contractors.

• Onsite Contractor Employee and Visitor Vaccination Status. Federal agencies should no longer ask onsite contractor employees or visitors for evidence of vaccination status “where COVID-19 safety protocols do not vary based on vaccination status,” and agencies are now prohibited from using the Government-wide Certification of Vaccination form.¹³ However, agencies may, in consultation with the Task Force, ask onsite contractor employees and visitors about their vaccination status and collect that information where there are unique, site-specific needs.¹⁴ In that circumstance, a separate agency-specific form and Systems of Records Notice may be required.¹⁵
• COVID-19 Tests. The Task Force issued guidance directing agencies to “stop implementing any current requirements that, solely because of their vaccination status, onsite contractor employees or visitors need to be able to provide proof of a negative COVID-19 test when accessing or in Federal facilities, or at an agency-hosted meeting, event, or conference.”¹⁶ However, agencies may, in conjunction with the Task Force, require COVID-19 tests in high-risk settings.
• Masking is optional when the COVID-19 Community Level is LOW or MEDIUM. If the COVID-19 Community Level is HIGH in the county where the federal facility is located, masking is required.¹⁷ If the COVID-19 Community Level is LOW or MEDIUM, masking is optional (unless otherwise required by federal state, tribal, territorial, or local law), and agencies must generally inform individuals that masking is optional (e.g., posting signs). Where masks are required, “agencies should require all individuals to wear a high-quality mask or respirator (such as an N95).”¹⁸
• Post-Exposure Protocols. Agencies can no longer prohibit persons, regardless of vaccination status, who have been exposed to COVID-19, from entering federal facilities or interacting with the public as part of their official responsibilities. However, those persons must follow masking and physical distancing requirements and must take a COVID-19 test “at least 5 full days after their last exposure (ideally, on or after day 6).”¹⁹

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.