Over the past year, the Biden administration has issued a number of labor and employment executive orders applicable to government contractors. Some of those requirements are updates to Obama-era executive orders, while others are new. Together, these obligations, which include an almost 50% increase to the applicable minimum wage, can have a significant impact on contractors.

For any government contractors that have questions about these labor and employment changes, we hope you can join us for an overview of these recent developments.

Continue Reading [WEBINAR] What Was Old is New Again – Government Contractor Labor & Employment Updates

After we published our article last week about the status of the four federal vaccine mandates, we learned that a seventh district court had enjoined the federal contractor COVID-19 vaccine mandate, continuing a remarkable string of losses for the Department of Justice (DOJ) in their attempts to defend President Biden’s Executive Order (EO) 14042. While the District Court for the District of Arizona has not yet finalized all of the details of its injunction that only applies in Arizona (the parties will be briefing that issue over the next week), this is yet another indication that the contractor mandate is unlikely ever to be fully implemented in its current form.

On September 14, the state of Arizona, along with several other entities and individuals, filed suit challenging both the contractor vaccine mandate and the federal employee vaccine mandate ordered in EO 14043. The Order issued on January 27 held the challenge to the federal employee mandate was not yet ripe, but it enjoined the contractor mandate.

As an initial matter, the court agreed with DOJ that the plaintiff challenging the employee mandate did not have standing because he had a medical exemption request pending and was, therefore, not required to be vaccinated or subject to discipline at that time and may never be if the request is granted. Because his alleged injury – have the vaccine or be terminated – may never occur, any opinion issued in response to his claim would be “merely advisory,” and therefore, his claim was unripe. The court similarly held that Arizona did not have standing to challenge the employee mandate because its employees were not subject to it, and the mandate did not infringe on Arizona’s sovereignty.

Continue Reading DOJ’s Run of Bad Luck Continues – A Seventh District Court Enjoins the Federal Contractor Vaccine Mandate

As the legal battles over the Biden administrations vaccine mandate for federal contractors continue, I authored an article for Law360 published on December 22, 2021 discussing significant rulings limiting the mandate’s enforcement in matters brought by multiple states.

After the U.S. District Court for the Eastern District of Kentucky ruled on November 30 to prohibit enforcement of the mandate against contractors and subcontractors in Kentucky, Ohio and Tennessee, the U.S. District Court for the Southern District of Georgia issued an injunction on December 7 prohibiting such enforcement nationwide. On December 16, the U.S. District Court for the Western District of Louisiana issued a third injunction prohibiting enforcement of the mandate, which was limited to the plaintiff states.

In addition to detailing the arguments and legal considerations weighed by the court in each case, I offered insight on what contractors can do now as additional cases are heard around the country, particularly as related matters head for January 7 oral arguments at the U.S. Supreme Court (announced shortly after Law360 published my article).

Continue Reading Injunctions May Only Pause the Government Contractor Vaccine Mandate

UPDATE: On the evening of December 22, the Supreme Court announced that Justice Kavanaugh has referred the applications for an emergency stay of the OSHA ETS to the full court, those applications have been consolidated, and consideration of those applications has been deferred pending oral argument scheduled for January 7, 2022.

On January 7, the Supreme Court will also hear the oral argument regarding the application by the Department of Justice for a stay of the injunction issued by the District Court for the Western District of Louisiana of the CMS vaccine mandate. That application, which was submitted to Justice Alito, who is responsible for emergency applications from the Fifth Circuit, was also referred to the full Court.  

In addition, on December 22, the District Court for the Southern District of Florida granted Florida’s request for a preliminary injunction of the government contractor mandate. This is the fifth injunction of that mandate, with four of the five courts finding that the president exceeded his authority under the Federal Property and Administrative Services Act. The parties have been given until December 29 to propose a preliminary injunction consistent with the order.

Finally, as of December 23, it does not appear that DOJ has sought an emergency stay of the injunctions of the government contractor vaccine mandate from the Supreme Court.

Continue Reading If the Government Contractor Vaccine Mandate Doesn’t Get You, the OSHA ETS Might

On December 16, in the challenge filed by Louisiana, Mississippi, and Indiana to the federal contractor vaccine mandate, the Western District of Louisiana (WD of LA) granted the plaintiff’s motion for a preliminary injunction (PI) with respect to “contracts, grants, or any other like agreement by any other name between the Plaintiff States and the national government.”  However, the ruling denied the motion for a PI to the extent it sought to enjoin the application of EO 14042 against contracts between private contractors and the government.

WD of LA Splits from the Other Districts on Key Contractor Vaccine Mandate Issues

Interestingly, unlike the Eastern District of Kentucky (ED of KY) and Southern District of Georgia (SD of GA), the WD of LA concluded that “a reasonably sufficient nexus can exist between EO 14042 and the government’s policy under [the Federal Property and Administrative Services Act] to procure and manage properties and services in an economical and efficient manner.”  Instead, the WD of LA concluded that the EO is unlawful because it conflicts with the Tenth Amendment.

Continue Reading A Third Court Enjoins the Federal Contractor Vaccine Mandate

On December 6, we noted on this blog post that because the injunction issued by the District Court for the Eastern District of Kentucky on November 30 prohibiting the government from enforcing the government contractor vaccine mandate against contractors and subcontractors in Kentucky, Ohio, and Tennessee had national impact, a nationwide injunction seemed to make sense.

Today, the District Court for the Southern District of Georgia, which held a hearing on a motion for a preliminary injunction on December 3, did just that.

The President Likely Exceeded Statutory Authority

The order granted the motion for a preliminary injunction filed by the plaintiffs – Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia – finding that they “will likely succeed in their claim that the President exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act (FPASA) when issuing Executive Order [EO] 14042.”

Continue Reading Georgia District Court Enjoins Government Contractor Vaccine Mandate Nationwide

As we previously reported, on November 30, the District Court for the Eastern District of Kentucky (ED of KY) enjoined the government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.” This follows nationwide injunctions of both the OSHA vaccine and testing Emergency Temporary Standard applicable to employers with 100 or more employees and the CMS interim final rule mandating vaccinations applicable to Medicare- and Medicaid-certified providers and suppliers.

As expected, on December 3, the Department of Justice (DOJ) asked the ED of KY for an immediate stay of the injunction and filed a notice of appeal to the Sixth Circuit. The plaintiffs have asked for three business days to respond, and it is unclear when the ED of KY will act on DOJ’s request. But the ED of KY case may be overtaken by other events, as preliminary injunction hearings in additional challenges to the government contractor vaccine mandate occurred on December 3 in two cases and are expected to happen on December 6 and 7 in two others.

Limited or Nationwide Injunction?

In the past few years, several commentators have questioned the conditions, if any, under which district courts may issue nationwide injunctions. While this is a very complex issue that brings into question the rights of the parties in a particular case, those in favor of limiting injunctions to the plaintiffs in the case generally favor having multiple district courts consider an issue so that the legal arguments are better developed before consideration by the appellate courts. Those in favor of nationwide injunctions believe that consistency is favorable, any district court is authorized to enjoin any executive branch action that it determines to be unlawful, and the government’s ability to appeal an injunction provides sufficient protection against improperly issued injunctions.

Continue Reading DOJ Seeks Stay of KY, OH, and TN Injunction; Hearings Go Forward in Other Government Contractor Vaccine Mandate Cases

On November 30, the District Court for the Eastern District of Kentucky enjoined the government contractor vaccine mandate issued in accordance with President Biden’s Executive Order 14042. This injunction follows an injunction issued on November 29 of the CMS vaccine mandate and the earlier injunction of the OSHA Emergency Temporary Standard by the Fifth Circuit.

Likely in response to the flurry of litigation challenging the government contractor vaccine mandate, on November 16 the Office of Management and Budget (OMB) published a new notice of determination and request for comments in the Federal Register. The new determination, which rescinds and supersedes the prior notice issued on September 24, 2021, and published in the Federal Register on September 28, 2021, provides additional support for the revised Safer Federal Workforce Task Force (Task Force) Guidance issued on November 10, 2021.

Task Force Guidance Published for the First Time

The revised notice, which asks that comments be submitted on or before December 16, 2021, is divided into three parts.  Part I published in the Federal Register for the first time the entire Task Force Guidance. While it is positive that the Guidance has finally been published, it is incomplete in one major respect. Specifically, although the November 10 version published in the Federal Register includes links to the regularly-updated frequently asked questions (FAQs), OMB fails to mention that the FAQs and the Guidance are subject to revision or that the contract provisions implementing these requirements mandate that contractors comply with the Guidance as it appears now and “as amended during the performance” of the contract.

OMB Expands its Economic Analysis

Part II of the notice, titled “Economy-and-Efficiency Analysis,” provides a post hoc justification for the measures initially taken over six weeks ago.  While some of OMB’s arguments and observations may have merit, the analysis leaves many open questions.

Continue Reading OMB Attempts to Plug Holes in the Government Contractor Vaccine Mandate