While opponents have scored some early victories against the Biden Administration's vaccine mandates for contractors, the GovCon community can't ignore the controversial mandates.
Most of us know about the President’s Executive Order 14042 mandating that most federal government contractor employees provide proof of full COVID vaccines. At last count 19 states have filed lawsuits challenging the mandate and, at press time, two federal courts (Kentucky and Georgia) have just recently issued preliminary injunctions prohibiting the mandate. In Kentucky, the court applied the injunctions only for Kentucky, Ohio and Tennessee. The Georgia federal judge went further and applied the injunction nationwide. Meanwhile, the U.S. Senate has passed a resolution to overturn virtually all federal vaccine mandates, which means little other than it received scant attention on the evening news.
Does this mean that contractor-mandated vaccines are off the table? No.
May vaccines still be mandatory for federal contractor employees? Yes.
Should contractors implement mandatory vaccination requirements or wait until the courts (including the Supremes -- the Court not the Motown band) ultimate decides? That depends.
So let’s unpack it from here.
First, the Kentucky and Georgia courts imposed preliminary injunctions, not final court decisions. And the other complaints filed in three other courts have yet to be decided. These preliminary injunctions are actions by a court ordering a person to do or cease a specific action during the pendency of the case. In other words, a preliminary injunction does not mean the case is over; in fact, it’s virtually only the beginning. These actions, seldom used by the courts, are typical when a plaintiff can show that its case has merit and will likely succeed and to stop the course of action to prevent a possible injustice or harm to the plaintiff pending a final resolution. A permanent injunction, or a final court judgment to that effect, comes after further court proceedings and typically over a longer time period. Compare injunctions with a lawsuit seeking money damages. The latter case is only about damages so typically there is nothing to initially enjoin or stop.
As such, we don’t know for sure how this will be resolved at the end of the day and it’s highly doubtful it will be resolved before the revised Jan. 18 vaccination deadline. The complaints themselves contain multiple theories, primarily that the grandaddy of federal procurement statues (loosely known as the Procurement Act), which provides the president broad (though not unlimited) authority to manage federal procurements, doesn’t extend that authority to such mandatory vaccinations.
But to be sure, the president has that broad authority to direct government procurement policy, set the rules for issuing government contracts, and establish procurement standards and regulations such as the FAR both on an interim and final basis.
The question in these lawsuits is whether or not the President overstepped this authority. So far, two courts have said yes. Three other courts (in several of these cases multiple states filed in a single state) are still considering the issue.
And the murky legal issues in these cases don’t stop with the Procurement Act. Other grounds asserted include that the mandate is unconstitutional as being an action only states or Congress can impose, that the government didn’t use the proper administrative procedures in implementing the mandate, plus other arguments, for example, that only the FAR Council and not the President (who technically controls the FAR Council) can change the rules mandating the vaccination, the mandate violates federal competition requirements and is “arbitrary and capricious” – English for just plain unlawful.
While the states are throwing spaghetti-laden legal theories against the proverbial kitchen wall hoping one or more of them will permanently stick, contractors still need to decide whether to impose their own employee (and subcontractor) vaccine mandates or hold out until a final, final, final court judgment is rendered, or at least know where the wind is steadily blowing. (Incidentally, throwing spaghetti against the wall to demonstrate doneness is a comical myth, especially for whoever has to clean the wall).
And of course it’s no accident that all of these cases were filed in districts chock full of conservative judges, so the ultimate outcome is that much more unclear.
Bottom line: it ain’t over ‘til it’s over.
Second, neither of the injunction orders prohibits a contractor from implementing vaccination policies and mandating vaccinations on its own. The ruling, again not a final one, only prohibits the federal government from mandating the vaccination through the executive order pending the outcome of the litigation. And currently most states don’t have laws limiting such mandates including DC, Maryland and Virginia (noting currently that 10 other states have imposed statutory limits on mandated vaccines). Right now, the main bone of contention is how employees and teaming partners will react given the current situation.
Third, there may be reasons for a contractor to opt for mandating vaccinations:
- There are a number of major federal contractors and some mid-tier companies that have nonetheless mandated vaccinations for their employees and are also requiring their subcontractors to implement similar vax programs (e.g., Lockheed Martin, Raytheon, L3Harris, BAE, Booz Allen). This flow-down requirement will likely be accompanied by a threat of a convenience termination if the subcontractor fails to comply. In that case, you may or may not need to comply as a subcontractor depending on the terms of the subcontract and whether your refusal to comply may (or may not) jeopardize a long term relationship with the prime.
- Federal employees who are co-located with their contractor counterparts may resent the fact that the government employee is vaccinated through a separate executive order (and according to the White House over 95 percent are fully vaccinated although some federal employees are suing to avoid the mandate) while the contractor employee is perceived as dodging the vaccine bullet, at least for now. Companies wishing to avoid the wrath of an angry pro-vaccine customer should consider its options in implementing a vax policy.
- Consider that, according to the GSA, 91 percent of GSA Schedule contractors have agreed to execute contract modifications to add a clause implementing the mandate. I’m not certain what percentage of the total contractors that represents but if this is starting a vaccination bandwagon then the government contracting industry as a whole should pay close attention to how this continues to evolve.
- Listen to your employees. Some may oppose or even challenge the mandate but think of the impact on the employees who do favor or indeed demand it -- and that may well be the overwhelming majority of your employee population. Although these employee challenges are also uncertain, one Alabama federal judge recently denied a similar injunction request by five United Launch Alliance employees fired because they refused to be vaccinated.
- Vaccinations will promote a healthier work environment and may even save lives.
These are just some reasons a contractor may need or desire to mandate vaccinations even if the government doesn’t force the issue. There may be others as we go along.
For those contractors that are imposing the mandate, consider drafting and implementing strong policies and procedures. This is primarily to ensure an orderly management of a mandatory process.
In addition, the mandate contains two exceptions: (1) where the employee is legally entitled to a medical-related accommodation that may include not being vaccinated, or (2) the employee holds a sincerely held religious belief, practice or observance that conflicts with the vaccination requirement. A policy may weed out those who cannot support either exception.
To further elaborate, the medical exception is limited mostly to where the employee has a vax allergy. The religious exemption is more troublesome for the employer because the term “sincere belief” has a rather low bar, the belief is individualized to the person asserting it and just about any halfway legitimate religion applies, as long as it is an actual religious conviction. In short, the religious belief can be suspect, so long as it has a religious basis and is sincere and not pulled out of thin air. The EEOC has recently published guidance on this issue which, typical of EEOC, is rather incomplete. So this exemption remains stuck in a legal quagmire.
A mandatory vaccination policy would contain procedures for an employee applying for and potentially obtaining or being denied an accommodation and the failure to follow those procedures will provide the employer at least some legal cover to defend against a possible employee termination suit. For example, an employer can ask for health care provider documentation to support the requested medical accommodation. An employee who claims that a religion doesn’t support the vaccination may be asked to explain that belief. In both cases a mere disagreement with or philosophical objection to the vaccination provides the employee no legal protection, and in most instances it will be up to the employee to provide documentation to support the exception.
But I can’t leave without imparting my thoughts about these lawsuits. First, it’s hard to imagine that the states have legal standing to sue the federal government on this issue. “Standing” basically means the plaintiff has a real grievance and will suffer real (not conjectural or hypothetical) injury if not corrected. Without standing you cannot sue. Here, the states are suing the feds over federal government management of federal government contracts. And I’m doubtful that a state’s argument that without relief the state and its citizens will lose contracts is either relevant or evidence of such loss beyond a mere hypothetical. In the Florida case, for example, lawyers for the state attached to the complaint examples of affected federal contracts, many of which the mandate doesn’t even apply.
Second, putting aside the constitutional and procedural claims (since my space here is limited), the states’ argument that the Procurement Act doesn’t authorize the President’s mandate is not impressive. Strip it down and the real argument is that the mandate is not sufficiently related to the “economical and efficient” management of federal procurements, which is what the Procurement Act broadly requires. Or simply put, the President overstepped his bounds under the Procurement Act because the mandate’s purpose is not ensuring economy and efficiency in government contracting administration.
But isn’t it conceivable that not requiring the vax may make government contracting less efficient? And isn’t that in any event up to the federal government, not the states, to decide? Either way, doesn’t the government have an interest in ensuring that its contracts not suffer major disruptions from this pandemic? And aren’t such disruptions likely to impose an economic burden on the government?
I’m not quite sure but perhaps the Kentucky and Georgia judges should have considered President Johnson’s Executive Order 11246 prohibiting discrimination against federal contractor employees. That measure arguably had no relation to actual federal procurement activities or their efficiency and economy, and (thankfully) that EO hasn’t been successfully challenged since 1965. (Notably both Presidents Kennedy and Eisenhower also issued executive orders related to combating discrimination in government contracting, also never successfully challenged). Not directly on point but to me it is sufficiently analogous to conclude that the Procurement Act logically extends to the vaccine mandate.
But then again all of this may be a moot point if the delays end up outlasting the pandemic. That is until the next one.
But consider this: legal stuff aside, for the contractor it should be all about the customer and its mission, and it must be all about the sustainment of revenue, strong contract backlog and continuous contract incumbency. And it’s definitely about the health and safety of customers, employees and team members.
The other moral and legal issues may take a back seat, or a front seat. Regardless, it seems other than healthcare industry we are the only one facing an industry-specific vax mandate, so eventually we will all need to deal with it, no matter what these courts tell us.