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On December 7, 2021, a federal court in Georgia issued a nationwide injunction prohibiting the federal government from enforcing Executive Order 14042 – the vaccine mandate for federal contractors and subcontractors. The federal contractor mandate applies to roughly one-quarter of the U.S. workforce and affects companies that do business with the federal government.

The States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia, various state agencies and certain other employers brought the action alleging that President Biden’s Executive Order exceeded his authority and requesting a preliminary injunction.

Judge R. Stan Baker agreed, stating that he was “unconvinced” that the Federal Property and Administrative Services Act authorized President Biden to direct the type of broad and unprecedented administrative actions contained in Executive Order 14042, adding that such action likely requires Congressional authorization. The court found that the plaintiffs had a likelihood of proving that Executive Order 14042 went beyond mere administration and management of procurement and contracting, and did not fall within the authority actually granted to the President by Congress. Instead, the Court reasoned, Executive Order 14042 works as a “regulation of public health. Judge Baker also rejected the government’s argument that enjoining Executive Order 14042 would permit the continued spread of COVID-19, finding that it would merely maintain the status quo.
Continue Reading Federal contractor vaccine mandate temporarily halted nationwide

On September 24, 2021, the Safer Federal Workforce Task Force issued guidance for federal contractors and subcontractors concerning various safety protocols (the Guidance) as required by President Biden’s Path Out of the Pandemic and Executive Order 14042 (the Order). The stated purpose of the safeguards set forth in the Guidance are to decrease the spread of COVID-19, which will decrease worker absences, reduce labor costs, and improve the efficiency of contractors and subcontractors performing work for the Federal Government.

As a threshold matter, the Order does not apply to all federal contractors. Specifically, the Order applies to contracts for services, construction, or leasehold interest in property; services covered by the Service Contract Labor Standards; concessions; and work relating to federal property lands and related to offering services for federal employees, their dependents, or the general public. The Order specifically excludes grants, contracts or contract-like instruments with Indian Tribes, contracts with a value equal to or less than the FAR simplified acquisition threshold (currently $250,000), employees performing work outside the United States, and subcontracts solely for the provision of products. However, the Guidance also strongly encourages agencies to incorporate clauses requiring compliance with the Order into contractors that are not covered or directly addressed by the Order.

Further, the requirements apply only to a covered contract, which is defined as one that includes a provision that the contractor will “comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Task Force.” Stated differently, simply being a federal contractor does not mean all employees must be vaccinated by the deadline.  Instead, the requirements apply to any new solicitations issued on or after October 15, 2021, the option to extend an existing contract on or after October 15, 2021, and new federal contracts awarded on or after November 15, 2021. However, agencies are again strongly encouraged to incorporate a clause requiring compliance with the Order into existing contracts and contract-like instruments prior to the date upon which the Order requires inclusion of the clause.Continue Reading Federal contractors and subcontractors receive guidance on President Biden’s vaccine mandate, including December 8, 2021 compliance date

This post was also written by Daniel J. Moore.

Just 10 days after taking office, President Obama signed Executive Order 13496, requiring all federal contractors and subcontractors to notify employees of their rights under the National Labor Relations Act (NLRA), including their right to join and support unions, and to include in every contract, subcontract, and purchase order, a pledge to honor the employee notice requirements. The U.S. Department of Labor (DOL) has now issued its final rule implementing the Executive Order, specifying how contractors and subcontractors must comply with those requirements, including a poster describing employees’ rights and how they can file claims with the National Labor Relations Board (NLRB), and the penalties employers will face if they fail to comply. The rule will take effect June 21, 2010.

Who Is Affected by Executive Order 13496?

Executive Order 13496 (“the Order”) affects contractors and subcontractors who contract or subcontract with a federal government agency and are covered under the NLRA. The Order does not apply to the federal government, state or local governments, labor unions, or employers who are covered by the Railway Labor Act. The Order also does not apply to prime contracts under the simplified acquisition threshold, currently set at $100,000, or subcontracts of $10,000 or less.Continue Reading Federal Contractors and Subcontractors Must Notify Employees of Right to Unionize