UPDATE (2/4/22): On February 2, the Eleventh Circuit scheduled oral argument for April 8.

UPDATE (1/27/22): On January 21, 2022, Judge Baker issued an order in response to the federal government’s request for clarification of his order enjoining the federal contractor vaccine mandate nationwide.  Judge Baker’s latest order addressed two inquiries.  First, he declined to answer the question of “whether the preliminary injunction ‘prohibit[s] private federal contractors from mutually agreeing with Defendants to include COVID-19 safety clauses in their federal contracts, thus allowing those federal contractors to voluntarily comply with the Task Force guidelines, including requiring their employees to be vaccinated,” finding such a ruling would constitute an impermissible advisory opinion.  However, in response to a question about the scope of the injunction, specifically whether it is limited to the vaccine mandate contained in the Safer Federal Workforce Task Force’s Guidance, or extends to the masking and social distancing requirements in the Guidance, the Court stated that the injunction is limited to the vaccine requirements.  In so doing, the Court stated that this reading is consistent with the text of the injunction (as well as the guidance in our original blog, below).  The Task Force has yet to update its guidance, issued in the wake of his injunction, stating the federal government will not enforce any aspects of the Guidelines.  We will report if that guidance changes as a result of this new development.

With respect to the federal government’s appeal of the injunction, briefing is set to conclude on February 22 and oral argument has been tentatively set for the week of April 4.

UPDATE (01/04/22): On December 22, a Federal judge in Florida became the latest judge to issue a preliminary injunction halting enforcement of the federal contractor and subcontractor vaccine mandate requirements.  The decision in State of Florida v. Nelson, et al. blocks enforcement only in Florida, but Judge R. Stan Baker’s order (discussed below) in State of Georgia, et al. v. President of the United States, et al. blocking enforcement nationwide remains in effect.  The Federal government has appealed that decision to the Eleventh Circuit and the Eleventh Circuit has declined to stay Judge Baker’s order during that appeal. Briefing on the appeal will not be completed until the end of January.

UPDATE: On December 9, attorneys for the Justice Department appealed the nationwide injunction to the Eleventh Circuit.  We will continue to provide updates as the situation develops.

On December 7, 2021, a federal judge issued a nationwide preliminary injunction halting enforcement of the federal contractor and subcontractor vaccine mandate requirements issued by the Safer Federal Workforce Task Force in response to President Biden’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors.  The mandate requires covered contractor employees to be fully vaccinated by January 18, 2022.  On November 30, a federal judge in Kentucky blocked enforcement of the mandate in Kentucky, Ohio, and Tennessee.  We blogged about that decision here.

Judge R. Stan Baker’s decision came in a case originally filed by Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia, the governors of several of those states, and various state agencies, including the Board of Regents of the University System of Georgia.  Later, the Associate Builders and Contractors, Inc. (“ABC”), a trade organization, and one of its chapters in Georgia filed a Motion to Intervene along with their own Motion for Preliminary Injunction.  Judge Baker denied the Motion to Intervene as to the local chapter, but granted the Motion to Intervene as to ABC.  As discussed below, the Judge then found that the inclusion of this additional plaintiff warranted issuing a nationwide injunction (as opposed to the Kentucky judge’s more limited Order).

As in the Kentucky case, Judge Baker found the Plaintiffs would likely be able to show that the mandate exceeds the President’s powers under the Federal Property and Administrative Services Act.  He declined to issue a decision as to whether the mandate likely violated the constitutional non-delegation doctrine or infringed on rights reserved to the states under the Tenth Amendment.

As to why the Court here issued a nationwide injunction, Judge Baker cited the inclusion of ABC, contending that the trade association had members “all over the country” and were awarded “57% of federal contracts exceeding $25 million during fiscal years 2009-2020.”  His injunction does not appear to apply to other aspects of the contractor COVID-19 requirements issued by the Task Force, including those related to masking and social distancing.

It is unclear whether the federal government will seek to have the injunction lifted, and whether such an effort will be successful.  But, effective immediately, covered contractors in any state or territory of the United States of America are no longer mandated to require their covered workers to be vaccinated.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns.  Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

Photo of Guy Brenner Guy Brenner

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group and is co-head of the Non-Compete & Trade Secrets Group. He has…

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group and is co-head of the Non-Compete & Trade Secrets Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues, medical and disability leave matters, employee/independent contractor classification issues, and the investigation and litigation of whistleblower claims. He assists employers in negotiating and drafting executive agreements and employee mobility agreements, including non-competition, non-solicit and non-disclosure agreements, and also conducts and supervises internal investigations. He also regularly advises clients on pay equity matters, including privileged pay equity analyses.

Guy advises federal government contractors and subcontractors all aspects of Office of Federal Contract Compliance Programs (OFCCP) regulations and requirements, including preparing affirmative action plans, responding to desk audits, and managing on-site audits.

Photo of Jacob P. Tucker Jacob P. Tucker

Jacob Tucker is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration and Employment Counseling & Training Groups.