On September 9, 2021, President Biden issued Executive Order (EO) 14042, which required parties contracting with the federal government to comply with certain COVID-19 safeguards as prescribed by the Safer Federal Workforce Task Force. These safeguards included a requirement that employees of certain federal contractors be vaccinated against COVID-19 during performance of the contract work. The heightened contracting requirements of EO 14042 applied to any new federal contracts and solicitations, any extension or renewal of an existing federal contract, and any exercise of an option in an existing federal contract.
Facing severe backlash, the contractor vaccine requirement in EO 14042 was immediately challenged in the courts, with opponents arguing that President Biden vastly exceeded his executive authority under the Federal Property and Administrative Services Act of 1949 (the “Federal Procurement Act”). In response, the federal government argued for an expansive reading of the Federal Procurement Act in which President Biden was empowered to “issue orders that improve the economy and efficiency of contractors’ operations.”
While the question of President Biden’s authority under the Federal Procurement Act was presented to the courts, the enforcement of EO 14042 came to a screeching halt. On November 30, 2021, the Eastern District of Kentucky issued a preliminary injunction enjoining the federal government from enforcing EO 14042’s vaccine requirement in the states of Kentucky, Ohio, and Tennessee. Then, on December 7, 2021, the Southern District of Georgia similarly issued a preliminary injunction; however, unlike the Eastern District of Kentucky’s injunction, the Southern District of Georgia enjoined enforcement of EO 14042 nationwide.
Altogether, federal trial courts issued no fewer than six preliminary injunctions that prohibited enforcement of EO 14042’s vaccine requirement, and the federal appellate courts were tasked with defining the scope of the President’s authority under the Federal Procurement Act.
The Eleventh Circuit Court of Appeals considered the Southern District of Georgia’s nationwide injunction, and, on August 26, 2022, the court agreed that President Biden exceeded his authority under the Federal Procurement Act. Nonetheless, the Eleventh Circuit narrowed the scope of the previously nationwide injunction, restricting it to the seven states who had originally filed that suit (Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia).
Following the Western District of Louisiana’s issuance of a preliminary injunction in a case brought by the states of Louisiana, Indiana, and Mississippi, a split panel of the Fifth Circuit Court of Appeals agreed with the Eleventh Circuit and affirmed the injunction in that case on December 19, 2022. That injunction applied to only the states bringing the suit.
Most recently, on January 12, 2023, the Sixth Circuit Court of Appeals similarly affirmed the Eastern District of Kentucky’s preliminary injunction, while also limiting the scope of that injunction to the parties in the litigation rather than all contractors throughout Kentucky, Ohio, and Tennessee. Thus, the three federal appellate courts that have reviewed the issue have all agreed that the requirements outlined in EO 14042 exceed President Biden’s authority under the Federal Procurement Act.
What now?
Although the Eleventh Circuit lifted the Southern District of Georgia’s nationwide injunction prohibiting the enforcement of EO 14042, the Biden Administration seemingly acknowledges that EO 14042 may be unenforceable, at least for now.
On October 19, 2022, the Office of Management and Budget (OMB) and the Safer Federal Workforce Task Force issued new guidance on the implementation of EO 14042. In particular, the Biden Administration has directed federal agencies not to (1) take any steps to require covered contractors and subcontractors to come into compliance with previously issued Task Force guidance, or (2) enforce any contract clauses implementing EO 14042.
This means that covered contractors and subcontractors currently do not need to comply with EO 14042, and it is unclear whether the federal government has any future plans to implement EO 14042.
The status of the federal government’s enforcement of EO 14042 may change depending on future litigation, and the issue may not be fully resolved unless it is decided by the United States Supreme Court. As of now, the Supreme Court has not granted review of this issue. Any contractor that has entered, or expects to enter, into a contract or subcontract for a federal project is encouraged to visit the Safer Federal Workforce Task Force’s website and consult legal counsel to determine whether it must comply with EO 14042.
Ryan C. Hall is a construction and insurance recovery attorney with Miller Nash LLP. He focuses his practice on commercial construction litigation and insurance recovery disputes, and he also has experience with both transactional and general business matters. Ryan can be reached by phone at 503-205-2394 or by email at ryan.hall@millernash.com.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
