January 26, 2022 - Coronavirus

Patchwork Preliminary Injunctions: Interpreting Contractor Compliance Obligations under EO 14042

As a result of the U.S. District Court for the Southern District of Georgia’s latest order, which confirms the nationwide preliminary injunction of Executive Order 14042 (“EO” or “EO 14042”) applies only to the “vaccine mandate,” federal contractors must solve yet another puzzle.  That is, are they covered by any statewide preliminary injunctions, or only the nationwide preliminary injunction?  This question can be further complicated by a contractor—or one of its subcontractors—performing work in more than one State.

Contractors exclusively covered by the nationwide preliminary injunction must now comply with all implementing guidance unrelated to the vaccine mandate, including the testing, masking, and social distancing requirements provided in the Safer Federal Workforce Task Force (“Task Force”) Guidance, FAQs, and agency memoranda.  Contractors performing work in States covered by another preliminary injunction, however, must review the scope of that injunction to determine their compliance obligations, which are summarized as follows:

  • The E.D. Kentucky order, which applies in Kentucky, Ohio, and Tennessee, extends only to the vaccine mandate. The plaintiff States alleged injury-in-fact with regard to the vaccine mandate, and the order focused only on that mandate. The language of the order’s conclusion also specifically identifies the vaccine mandate and not the Task Force Guidance.
  • Likewise, the E.D. Missouri order, which applies in Alaska, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming, extends only to the vaccine mandate. The plaintiff States specifically alleged that the “contractor mandate ostensibly preempts state statutes regarding vaccine mandates.”
  • The M.D. Florida order, which applies only in Florida, is broader and extends to “any contract clause requiring compliance with the COVID Safety Protocols for Federal Contractors described in [EO 14042],” which includes the Task Force Guidance, for work performed in the State of Florida. The order also prevents the federal government from denying Florida government contracts based on its refusal to agree to such a clause.
  • The W.D. Louisiana order, which applies in Indiana, Louisiana, and Mississippi, is also broader in the scope of its prohibition, but it applies to a much more limited set of contractors. This order “enjoin[s] the national government from enforcing the Task Force Guidance and FAR Memo in any contract, grant, or any other like agreement . . . between the Plaintiff States or their agencies and the national government” (emphasis added).  Thus, the preliminary injunction bars enforcement of all requirements of the Task Force Guidance, not just the vaccine mandate, and the contract clause that incorporates those requirements.  But it does not apply to all contractors.  Instead, the preliminary injunction applies only to federal contracts held by the plaintiff States and their agencies, and thus by extension to contractors performing subcontract work under federal contracts held by those States and agencies.

In short, the Kentucky and Missouri court orders preliminarily enjoin the vaccine mandate only (and thus mirror the Southern District of Georgia’s nationwide injunction).  The Florida preliminary injunction applies to any contract clause requiring compliance with the COVID Safety Protocols provided in EO 14042, which include the vaccination, testing, masking, and social distancing requirements in the Task Force Guidance (see Section 2 of the EO).  And the Louisiana order applies to the entirety of the Task Force Guidance and the FAR Memo, but it affects only contracts, grants, and other agreements between the federal government and the plaintiff States, which would include any subcontracts thereunder.  (Additional information on the status of these lawsuits is provided in our previous client alert.)

Finally (for now), it is worth noting that contractors seeking injunctive relief from the remaining EO 14042 requirements may face resistance from the courts.  In a January 24, 2022 order, the U.S. District Court for the Middle District of Florida denied the plaintiffs’ motion for emergency injunctive relief because the contractors waited months after the issuance of EO 14042 to file their case, and two days after the vaccination deadline.  The court also concluded that “whatever threat Plaintiffs faced from the enforcement of those Executive Orders has subsided, at least for the time being,” as both EO 14042 and Executive Order 14043 (the federal employee vaccine mandate) are already subject to nationwide preliminary injunctions.