On Nov. 30, 2021, a Kentucky district court preliminarily enjoined the federal contractor COVID-19 vaccination mandate, but only for three states: Kentucky, Ohio and Tennessee.
On Dec. 7, a Georgia federal judge granted ABC’s motion to intervene and issued a nationwide preliminary injunction order against the mandate. Judge Baker’s decision made it clear that ABC’s participation in the case was essential to getting nationwide relief, which would otherwise have been limited to the states who sued. This was a big win for ABC, the only private business group that joined the states in suing over this mandate.
As a result of the current legal challenges, the Safer Federal Workforce Taskforce, which provides the guidance implementing the federal contractor vaccination mandate, provided an update on Dec. 9, indicating it would take no action to enforce the requirements of Executive Order 14042 pending the outcome of appeals.
On Dec. 17, the 11th Circuit kept in place the Georgia court’s nationwide injunction against the federal contractor vaccination mandate. The appeals court held oral arguments on April 8.
On Aug. 26, 2022, the U.S. Court of Appeals for the 11th Circuit issued its long-awaited decision. In a major victory for ABC and its members, the 11th Circuit’s decision narrowed the December 2021 nationwide preliminary injunction granted by the Georgia court to only ABC members who bid on federal contracts and the state plaintiffs in the case.
The 11th Circuit’s decision on the Biden administration’s appeal has made it clear that ABC members and state plaintiffs “need not comply with the vaccination requirement in their capacity as contractors, and they are not responsible for including that requirement in lower-tier subcontracts.”
On Oct. 18, the 11th Circuit issued its mandate and the narrowing of the district court’s nationwide injunction took effect.
On Oct. 19, the following was announced on the Safer Federal Workforce Taskforce website:
Consistent with the Oct. 14, 2022 notification from the Office of Management and Budget and the Safer Federal Workforce Task Force, OMB has issued guidance to agencies concerning the implementation of Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors (Sept. 9, 2021). Despite the lifting of the nationwide bar to enforcement on Oct. 18, 2022, at this time agencies should not: (1) take any steps to require covered contractors and subcontractors to come into compliance with previously issued Task Force guidance; or (2) enforce any contract clauses implementing Executive Order 14042. To allow time to develop advice and processes for meeting agencies’ obligations under Executive Order 14042 and applicable court orders, agencies should follow the instructions provided in the OMB guidance here.
The federal contractor vaccination mandate will magnify economic challenges facing the federal contracting community and the overall construction industry, such as a workforce shortage, rising materials prices and supply chain woes, and cause negative ripple effects throughout the overall American economy.
ABC applauded the decision of the U.S. Court of Appeals for the 11th Circuit and will continue to lead efforts to push back on the Biden administration’s executive overreach harming federal contractors with respect to COVID-19 vaccine mandates.