After we published a post about the Eleventh Circuit’s decision to narrow the scope of the nationwide preliminary injunction of the government contractor vaccine mandate, the government announced that, for the time being, it will not enforce the mandate. The Safer Federal Workforce Task Force added the following statement to its website:
Regarding Applicable Court Orders and Injunctions: To ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified, or vacated, depending on the course of ongoing litigation, the Federal Government will take no action to implement or enforce Executive Order 14042. For existing contracts or contract-like instruments (hereinafter “contracts”) that contain a clause implementing requirements of Executive Order 14042, the Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency.
To be clear, the decision not to enforce the mandate is discretionary, meaning the Government could reverse its position tomorrow and begin enforcing the clause against parties not covered by one of the six preliminary injunctions.
Also, for contractors that have the clause already incorporated in existing contracts, the Government’s decision to not enforce the clause does not answer whether they must comply. As mentioned, the non-enforcement decision could be reversed at any time, and if that were to occur, contractors would have to come into compliance quickly. Given that risk, some companies may continue to adhere to the Task Force guidance even if there are, at the moment, no consequences for non-compliance.
Finally, the six injunctions are preliminary. Although it seems unlikely, it is possible that as the cases progress, one or more of the injunctions could be vacated. Indeed, appeals are pending in five vaccine mandate cases in which preliminary injunctions were issued, and decisions in those cases are expected in the coming weeks or months.
While the contracting community should be thankful for the Task Force’s quick decision, much uncertainty remains. If you have any questions about what to do in response to these vaccine mandate developments, please contact Richard Arnholt at firstname.lastname@example.org or 202-827-2971.