By: Leah K. Sell, Esq.
A federal judge in Georgia issued a nationwide preliminary injunction on December 7, 2021, temporarily staying an executive order that requires contractors receiving federal funds to ensure workers are vaccinated against COVID-19 (Executive Order 14042 or the Order). The Justice Department appealed the injunction on December 10, 2021, to the Eleventh Circuit, seeking a stay of the temporary block of the Order.
Simply put, there was an Order, the lower court put the Order on ice, and now the executive branch wants the appeals court to stop the freeze.
Those objecting to the Order argue that the requirements imposed on federal contractors exceed executive authority. The Justice Department in its appeal claims that a stay of the Order during litigation will interfere with government interests and harm public health.
President Biden used his executive authority to issue the Order requiring certain workers whose employer’s contract with, and receive funds from, the federal government to be vaccinated for COVID-19, with limited exceptions. The Order also applied to most subcontractors and required primary contractors to enforce the measures through a “flow-down” method.
Congress and other authorities have long authorized the president to issue rules relating to contractors who receive federal funds. This executive power has been exercised in a variety of ways including to increase the minimum wage that must be paid to federal contractor workers, impose restrictions on drug and alcohol use in workplaces that receive federal funds, and perhaps most notably, affirmative action programs.
If the Eleventh Circuit agrees with the federal court that the Order more likely than not exceed executive power, it will uphold the national temporarily injunction and stop enforcement of the Order, which was set to begin on January 18, 2022.
However, if the Justice Department’s appeal is granted, the temporary stay will be lifted pending litigation and federal contractors subject to the Order will need to be prepared to quickly comply with the January 18, 2022, deadline.
So what are employers to do? As with the other in-flux orders, and most things in life, preparation is paramount. Employers should continue to assess their needs for compliance, develop their plan, communicate with their employees, and as always, consult with their local employment counsel.
This order, injunction, and appeal is just one example of an ever-growing pattern of litigation around the country involving vaccination requirements. Will it ever stop? (Yes, but it is uncertain when that will occur.) However, if there’s a problem, (of which there are sure to be many) Leech Tishman attorneys are here to help.
Employers with questions related to COVID-19 and the workplace following the ETS, or other questions related to employment law, should contact Leah Sell.
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