While we are still in the first half of 2022, it has already been a busy year in terms of labor and employment developments for government contractors. For any companies doing work for the federal government, whether as prime contractors or as subcontractors, it can be challenging to keep up with the perpetually changing requirements,
[WEBINAR] What Was Old is New Again – Government Contractor Labor & Employment Updates
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.
Union Labor or Bust! Project Labor Agreements Now Required for Large Federal Construction Projects
On February 4, President Biden signed the Executive Order on Use of Project Labor Agreements for Federal Construction Projects, which mandates, with limited exceptions, that contractors and subcontractors working on federal construction projects valued at $35 million or more agree that for that project, the companies will “become a party to a project labor agreement [PLA] with one or more appropriate labor organizations.” A prior EO issued by President Obama, which the recent EO drew liberally from, encouraged the use of labor agreements on large construction projects, but we are not aware of any prior EO mandating their use.
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If the Government Contractor Vaccine Mandate Doesn’t Get You, the OSHA ETS Might
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.
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Georgia District Court Enjoins Government Contractor Vaccine Mandate Nationwide
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.”
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DOJ Seeks Stay of KY, OH, and TN Injunction; Hearings Go Forward in Other Government Contractor Vaccine Mandate Cases
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.
Advancing the “Made-in-America” Movement
The $1.2 trillion Infrastructure Investment and Jobs Act (IIJA) that President Biden signed on November 15, expands the provisions supporting American manufacturing through federal procurement. The IIJA statutory directives impose novel domestic origin requirements and standards for construction materials and products acquired for federally-aided public works infrastructure projects at state and local levels.
Overview
Prior efforts to protect and promote the U.S. industrial base consisted of President Trump’s July 15, 2019 Executive Order 13881, Maximizing Use of American-Made Goods, Products, and Materials, and President Biden’s January 25, 2021 Executive Order 14005, Ensuring the Future is Made in All of America by All of America’s Workers. Find more information about these two executive orders on our blog post titled “Heightened Buy American Act Requirements Are Here and More Are on the Way.”
President Biden’s EO 14005 was reinforced by the statutory authorities detailed in the domestic preference provisions of the IIJA. The three key concepts of the IIJA are:
The Last Domino Falls – The Beginning of the End of the Government Contractor Vaccine Mandate?
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.
OMB Attempts to Plug Holes in the Government Contractor Vaccine Mandate
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.
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More Revisions to the Government Contractor Vaccine Mandate
As expected, late on November 10 the Safer Federal Workforce Task Force revised its government contractor vaccine mandate Guidance to extend the deadline for covered contractor employees to get vaccinated. This revision follows the White House announcement on November 4 that the deadline for implementation of the federal government contractor mandate would be synchronized with the CMS rule and the currently-stayed OSHA Emergency Temporary Standard, requiring that employees under all three regimes receive their last vaccine dose by January 4, 2022. Instead of using the date by which employees had to received their last vaccine dose, January 4, the Guidance has been revised to now say that covered contractor employees must be fully vaccinated by January 18, 2022 rather than the original December 8, 2021. As a reminder, fully vaccinated means an individual must have received the last vaccine dose two weeks prior.
In addition, the Q&A that previously appeared at the end of the September 24 Guidance has been removed and replaced with two references to the Task Force’s website:
Frequently Asked Questions
Frequently Asked Questions regarding this Guidance can be found here: https://www.saferfederalworkforce.gov/faq/contractors/
All Task Force Guidance, FAQs, and additional information for Federal contractors and subcontractors can be found here: https://www.saferfederalworkforce.gov/contractors
It is not clear whether any other changes were made to the Guidance because the changes were not made in redline.
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