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UPDATE: COVID-19 Restrictions for Government Contractors

by | Jan 27, 2022 | Government Contracts

On January 21, 2022, Judge R. Stan Baker, a Federal District Court judge in the Southern District of Georgia issued an opinion that government contractors need to know about. The decision addressed several follow-up issues the government had with Judge Baker’s December 7, 2021 nationwide injunction, now on appeal, against the vaccine mandate that the federal government tried to impose on government contractors following President Biden’s issuance of Executive Order 14042. Although this injunction is only one of many involving the COVID-19 safety provisions flowing from the executive order, the decision presents both contractors and the government with opportunities and challenges.

Judge Baker’s injunction did not enjoin masking and social distancing requirements. 

Because the implementation of E.O. 14042 included not only the vaccine mandate but also social distancing and mask-wearing requirements, the government asked the judge to clarify whether his injunction applied to not only the vaccine mandate but also to the social distancing and mask-wearing requirements.

His January 21st decision made clear that his injunction applied only to the vaccine mandate:

While there was evidence before the Court indicating that other COVID-19 safety-related requirements were also established as a result of the Executive Order (i.e., masking and physical distancing requirements), the evidence and arguments presented to the Court in the parties’ briefs and at the hearing on the Motion for Preliminary Injunction focused almost exclusively on the vaccination requirement, and the Court’s Order on the Motion for Preliminary Injunction did not reference, discuss, or analyze any of the other COVID-19 safety-related requirements.

Thus, one takeaway from his January 21st decision is that the masking and social distancing requirements are not subject to the judge’s injunction, leaving the government free to continue to impose these requirements without violating his injunction.

A contractor is free to voluntarily comply with all COVID-19 requirements

Judge Baker’s January 21st decision raised another issue on which the government asked for clarification: whether his injunction prevented contractors from voluntarily complying with the federal safety requirements that flowed from issuance of E.O. 14042. Specifically, the government asked “whether the preliminary injunction prohibit[s] private federal contractors from mutually agreeing with [the government] to include COVID-19 safety clauses in their federal contracts, thus allowing those federal contractors to voluntarily comply with the Task Force guidelines, including requiring their employees to be vaccinated.”

The judge refused to provide clarification, citing a court’s traditional refusal to issue “advisory opinions.” Regardless, the possibility that the government raised — a contractor voluntarily complying with part or all of E.O. 14042 — might appeal to some contractors. Perhaps it could assist a contractor in getting a good CPARS evaluation, for example.

Bottom line.

As mentioned earlier, the January 21st decision gives both contractors and the government opportunities and challenges. But there are no simple answers. The regulations are complex and various federal courts have issued decisions applicable to one, several, or all states.

Berenzweig Leonard has been aggressive in distributing to its clients up-to-date information on these COVID-19 issues and careful analysis of how they affect contractors. For example, on Tuesday, January 25, 2022, we sent out a Client Alert advising clients that President Biden had withdrawn the 100+ employee vaccine mandate. If you would like to receive these updates, sign up here.

Written by Terry O’Connor, Partner and Director of Government Contracts at Berenzweig Leonard, LLP.