EEO Compliance Dispatch

It has been quite a while since we talked about the federal contractor vaccinate mandate, and if you have forgotten what all that fuss was about, you can find some prior posts on this topic here and here.

Now, after months of inactivity on this front, this topic has come back to life thanks to a decision from the U.S. Court of Appeals for the Eleventh Circuit. Although the entire opinion is worth a read, these three holdings are what matters most:

• The injunction prohibiting enforcement of the vaccine mandate is appropriate and remains in effect because the plaintiffs are likely to succeed with their argument that the mandate is outside the scope of the federal Procurement Act.
• However, the nationwide scope of the injunction with respect to new and existing contracts was overly broad and is now limited to the parties to this particular action, which include the States of Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia, and the Associated Builders and Contractors, a trade organization.
• With respect to solicitations for new contracts, the federal government is enjoined from considering the enforceability of the vaccine mandate when awarding a contract if any of the plaintiffs in this case are bidders.

What does this mean for contractors?

First, only the parties that brought this action get the benefit of the narrower injunction. The seven states, agencies of those states, and Associated Builders members cannot be required to comply with the vaccine mandate, and the vaccine mandate cannot be considered when awarding contracts on which these parties bid.

In addition, other injunctions prohibit enforcement of the vaccine mandate against contractors in Alaska, Arizona, Arkansas, Florida, Iowa, Kentucky, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Dakota, Tennessee, and Wyoming.

Does this mean that contractors not specifically covered by an injunction or located in a jurisdiction without an injunction in place must begin complying with the vaccine mandate?

No, at least not yet. The Safer Federal Workforce Task Force manages the implementation of these requirements for contractors, and after the nationwide injunction was entered, the Task Force advised contractors that the federal government was not enforcing the requirements of the Executive Order anywhere in the United States or other covered areas. Most significantly, the Task Force stated that it would “take no action to enforce the clause implementing [the vaccine] requirements . . . , absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order (hereinafter ‘Excluded State or Outlying Area’).” (Emphasis added).

The Task Force defined the currently “Excluded States or Outlying Areas” as

• The fifty states
• The District of Columbia
• The commonwealths of Puerto Rico and the Northern Mariana Islands
• The territories of American Samoa, Guam, and the United States Virgin Islands
• The minor outlying islands of Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Atoll.

Thus, until the Task Force revises the information on its website or provides some other official notice, contractors need not take any action. But because the nationwide scope of the injunction is no longer in effect, contractors in jurisdictions not specifically covered by an injunction should stay alert for modifications to the government’s approach.