By Michelle M. De Oliveira, Esq. & Laura M. Raisty, Esq., Kenney & Sams, P.C. 

 

On December 7, 2021, the United States District Court for The Southern District of Georgia halted enforcement of President Biden’s Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors (EO 14042).  ABC joined a coalition of states that challenged the order.  As a national organization, our association’s involvement means the order will apply nationwide, rather than just to the states that sued.

What Does This Mean?

For now, we are back to the status quo—and federal contractors do not need to comply with the requirements set forth in EO 14042, including the requirement that all employees “working on or in connection with a covered contract” be fully vaccinated by January 18, 2022.

This, of course, may change as the case continues its way up through the courts—but at least for now, we know that the federal contractor mandate has been temporarily lifted.

Recap of Executive Order 14042

On September 9 and October 8, 2021, K&S published detailed client alerts that outline the EO 14042’s requirements, including those set forth in the Safer Federal Workforce’s COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. 

General Reasoning for Court’s Decision

In short, the court concluded that the Biden administration exceeded its authority under the Federal Property and Administrative Services Act (the “Procurement Act”), and that it did not have Congressional authority to impose a COVID-19 vaccination mandate on all federal contractors.

Although the Procurement Act grants the President the ability to “particularly direct and broad-ranking authority over those larger administrative and management issues . . . that . . . should be used in order to achieve a flexible management system capable of making sophisticated judgments in pursuit of economy and efficiency,” the court notes that EO 14042 went far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting and instead, in application, works as a regulation of public health, which is not clearly authorized under the Procurement Act.

For these reasons, among others, the court concluded that the Biden Administration overreached when it issued EO 14042 and exceeded the scope of its legal authority.

Associated Builders & Contractors, Inc.’s Role

Associated Builders & Contractors, Inc.’s request to intervene—and become a party in the case—played a critical role in the court’s decision to issue the preliminary injunction nationwide (as opposed to limiting the holding to the state of Georgia).

Indeed, the court highlighted the fact that ABC:

  • Is a construction industry trade association that represents tens of thousands of contractors and subcontractors that regularly work and bid on federal contracts for services.
  • Has members all over the country.
  • Has broad involvement in federal contracts and were awarded 57% of federal contracts that exceed $25 million during fiscal years 2009 – 2020.

The court also noted that because of the executive order’s imposition of the vaccination requirement on employees, subcontractors, among others, it would create confusion if it enjoined (or stopped) enforcement only in certain states, but not others. These were important factors that influenced the court’s decision to impose the injunction nationwide.

What’s Next?

Although this decision prevents the federal government from enforcing the COVID-19 vaccination mandate for the time being, employers that wish to impose vaccination mandates may continue to do so—unless state law does not allow it.

Federal contractors should also be prepared to shift gears and ensure compliance with the federal contractor vaccination mandate if the injunction is lifted, or if on appeal, a court opts to uphold (and agree to) enforcement of EO 14042.