Labor & Employment

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:Continue Reading Advancing the “Made-in-America” Movement

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

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.Continue Reading More Revisions to the Government Contractor Vaccine Mandate

The five cases challenging the contractor vaccine mandate filed in various district courts by 22 states, which we discussed on this blog last week, continue to develop. Motions for preliminary injunctions have now been filed in all cases except the suit filed by Texas, and briefing schedules/hearings are set or in process.

Status of Challenges

Here is a quick rundown of the status of the suits:

  • Florida (Middle District of Florida) – Motion for a Preliminary Injunction was filed on November 2. On November 8, the court set a briefing schedule. Oral argument is scheduled for December 7 at 9:00 a.m. Eastern in Tampa Courtroom 15 A.
  • Texas (Southern District of Texas) – Initial pretrial and scheduling conference set for February. 23, 2022, at 9:00 a.m. Central. As of November 10, no motion for a preliminary injunction has been filed.
  • Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, Wyoming (Eastern District of Missouri) – Motion for Preliminary Injunction was filed on November 4. On November 9, the states filed a Motion to Expedite Preliminary Injunction Briefing.
  • Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, West Virginia (Southern District of Georgia) – Motion for Preliminary Injunction was filed on November 5. Emergency motion to expedite the hearing schedule was filed on November 8, and a telephonic hearing on that motion is scheduled for 4:00 p.m. Eastern on November 10.
  • Tennessee, Kentucky, Ohio (Eastern District of Kentucky) – Motion for a Temporary Restraining Order and Preliminary Injunction was filed on November 8. A status conference was held on November 9 to set a briefing and hearing schedule.

Continue Reading The State Challenges to the Contractor Vaccine Mandate Continue

In welcome news for government contractors, the government contractor vaccine mandate continues to soften.  In a statement issued by the White House this morning, the deadline for complying with the mandate will be extended from December 8, 2021, to January 4, 2022, to align with the deadline of the OSHA emergency temporary standard that was

UPDATE: On November 4, Tennessee, Kentucky and Ohio filed a complaint in the Eastern District of Kentucky challenging the federal contractor mandate.  The complaint is very similar to the ones filed by other states as described in the blog post below.

At the end of October 2021, four complaints were filed by almost 20 states challenging the government contractor vaccine mandate. While some have suggested that these states, led by Republican governors, filed the suits for political reasons, it would be a mistake to discount them.  The complaints raise very significant procedural and substantive questions about the legality of the government contractor vaccine mandate.

The Complaints

On October 28, the State of Florida filed suit in the Middle District of Florida (the Florida Complaint).  The following day, ten more states – Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming – filed a complaint in the Eastern District of Missouri (the Missouri Complaint); a further seven states – Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia – filed suit in the Southern District of Georgia (the Georgia Complaint); Texas filed a complaint in the Southern District of Texas (the Texas Complaint).

While there are multiple differences between the complaints, there is a high likelihood that the states have established standing to challenge the government contractor mandate as they all have agencies or other entities that are party to federal contracts and contract-like instruments.  In addition, each complaint seeks declaratory and injunctive relief but as of November 3 it appears that only Florida has filed a motion for a preliminary injunction. We expect the others to be filed soon. Also, they all make facially compelling procedural and substantive arguments that Executive Order 14042, the OMB Guidance, and the government contract provisions are unlawful.Continue Reading States Have Joined the Fight to Challenge the Government Contractor Vaccine Mandate

The Safer Federal Workforce Task Force (Task Force) recently issued additional Q&A’s that seemingly take a softer approach to compliance with the contractor vaccine mandate, indicating contracting officers are to “work with,” rather than punish contractors,  in an effort to address challenges such as employees refusing to get vaccinated.  Other answers in the Q&A further expand the mandate’s coverage to affiliates in ways that, while well-intentioned, may increase growing opposition to the already incredibly broad diktat.

For those reasons, unless and until the mandate is reversed by the administration or stopped by a federal court, which, as we will discuss in another post, now seems to be a real possibility, contractors subject to the contract provision should continue working toward getting “covered contractor employees” vaccinated by December 8 and processing requests for medical and religious accommodations.  But it does suggest that the administration belatedly realizes that the vaccine mandate could cause very significant supply chain disruptions if strictly enforced.

The New Q&As

In the new Q&A’s issued on November 1, the Task Force clarifies several points that provide welcome flexibility for contractors.  They also confirm that contractors working in good faith toward compliance may not be subject to punishment for failing to get 100% of their workforce vaccinated.  But in other Q&As, the Task Force continues its incredibly broad implementation of the mandate.Continue Reading Is the Contractor COVID-19 Vaccine Mandate Softening?

On September 9, President Biden issued Executive Order 14042 requiring that federal contractors comply with forthcoming COVID-19 workplace safety guidance. That guidance, which was issued on September 24, is remarkably broad, requiring that employees working directly on government contracts, in connection with government contracts, or in the same facility as an employee in the first

Well, that was quick.  In four memos dated September 30 and October 1, contractors learned the terms of the contract provisions implementing the COVID-19 vaccine and masking requirements mandated by President Biden’s Executive Order (EO) 14042, discussed here, and the implementing guidance issued by the Safer Federal Workforce Task Force (Task Force) on September 24. In the next 10 days we expect to see most other agencies issue deviation memos similar to the General Services Administration (GSA) and Department of Defense (DoD) memos discussed below.

As discussed in this post, while the contract provisions, along with updated guidance from the Task Force, answer some of the open questions, contractors are still in the unfortunate position of rushing to ensure they are compliant with these requirements when the contract provisions apply to them without knowing the answers to some fundamental questions. Despite these open questions, companies have little time, for example, to ensure that covered employees are vaccinated by the December 8, 2021 deadline. After that deadline, any contractor that becomes subject to these requirements will have to ensure that on new contracts or options/extensions that incorporate the new clause, covered employees are fully vaccinated by the first day of performance, which of course is impossible unless contractors enforce these vaccine mandates in advance. That said, the memos do seem to clarify that compliance with the Task Force guidance will not be required for prime contracts solely for the manufacturing of products.

The FAR Clause

On September 30, the Federal Acquisition Regulation (FAR) Council issued a memo providing agencies with “initial direction” requiring the implementation of the Task Force guidance. It includes FAR 52.223-99, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors (OCT 2021) (Deviation), along with directions that agencies “expeditiously” issue class deviations to ensure that contracting officers can begin using the clause on or before October 15, 2021.Continue Reading And … They’re Off! Contractors Race to Comply Now that the COVID-19 Vaccination Deviations Have Arrived