President Biden’s vaccination mandate for federal contractors remains under a nationwide injunction.  In September 2021, President Biden issued Executive Order 14042, which directed federal agencies to require certain federal contractors and subcontractors to implement a vaccine mandate and COVID-19 workplace safety measures.  On December 7, 2021, the Southern District of Georgia enjoined the Executive Order nation-wide, and the injunction was later upheld by the US Court of Appeals for the Eleventh Circuit.

The federal government appealed the Eleventh Circuit’s decision, and briefs were submitted by the parties in January 2022.  Oral argument currently is scheduled for April 8, 2022 before the appellate court.

In addition, the Southern District of Georgia issued a subsequent order on January 21, 2022, stating that the ruling on the injunction expressly covered the vaccine mandate only.  The court explained that the other aspects of the Executive Order remain in effect, including the health and safety protocols contained in subsequent guidance, such as masking, social distancing, and designation of COVID-19 safety coordinators.

Confusion remains as to whether these other aspects are in effect, particularly in light of the fact that other federal courts have enjoined Executive Order 14042, but only in certain states including Alaska, Arkansas, Florida, Iowa, Kentucky, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Dakota, Tennessee, and Wyoming.

While the legal status of the Executive Order’s remaining COVID-19 safety rules is unclear, the Office of Management and Budget issued guidance stating the Government will take no action to enforce any clause implementing Executive Order 14042.  In addition, the Department of Defense issued a memorandum on December 9, 2021 stating that its contracting officers will not enforce clauses implementing the Executive Order.  The Department of Defense also instructed all contracting officers not to include clauses required by the Executive Order in existing contracts, task orders, and delivery orders.

We will monitor the upcoming oral argument and other developments regarding the federal contractor vaccine mandate.  Ballard Spahr’s Labor & Employment Group counsels employers regarding the changing requirements and status of the COVID-19 vaccine mandates and workplace safety and compliance.