Federal Court Suspends Federal Contractor Vaccine Mandate Nationwide

On December 7, 2021, the U.S. District Court for the Southern District of Georgia issued a preliminary injunction temporarily in Georgia v. Biden, halting the enforcement of Executive Order 14042 (EO 14042) nationwide. In doing so, the court joined the U.S. District Court for the Eastern District of Kentucky, which issued a preliminary injunction in Kentucky v. Biden last week halting the enforcement of EO 14042 in Kentucky, Ohio and Tennessee.

Seven states — Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia — the governors of several of those states, and various state agencies filed the lawsuit in the Southern District of Georgia, challenging EO 14042 and requesting that the court issue a preliminary injunction. The Associated Builders and Contractors, Inc. (ABC), a trade organization, moved to intervene in the action, and the court granted ABC’s request. In granting the preliminary injunction, the court determined that the plaintiffs met each of these required elements: (1) likelihood of success; (2) irreparable harm; (3) the balance of the harm; and (4) public interest.

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OFCCP Announces Long-Awaited Federal Contractor Compliance Portal

On December 2, 2021, the Office of Federal Contract Compliance Programs (OFCCP) officially announced its long-awaited annual affirmative action plan (AAP) certification process, which will require federal contractors and subcontractors (contractors) to register with its new Contractor Portal beginning in 2022.

The Contractor Portal will require covered contractors to certify whether they are meeting their existing requirement to develop and maintain annual AAPs. Specifically, contractors that hold a contract of $50,000 or more and employ 50 or more employees must develop and maintain AAPs pursuant to Executive Order 11246 and Section 503 of the Rehabilitation Act of 1973. If a contractor has at least 50 employees and a contract of $150,000 or more, then it must also develop an AAP pursuant to the Vietnam Era Veterans’ Readjustment Assistance Act of 1974.  While contractors already certify AAP compliance, at least implicitly, as a part of the regular contracting process, this new requirement necessarily imposes an added obligation to conduct the appropriate diligence required in order to certify accurately and explicitly.  As such, contractors need to be particularly mindful of False Claims Act exposure in the event of an inaccurate or false certification.

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Germany Restricts Access to Non-Essential Businesses for Unvaccinated Individuals

Germany announced that it will impose new restrictions on individuals who are not vaccinated. Although an official version of the rules has yet to be released, Germany’s government website has provided a summary of the new restrictions.

Based on that summary, individuals who have not been vaccinated are allowed to shop only in grocery stores, pharmacies and drugstores. Only individuals who have been vaccinated or have recovered from COVID-19 are allowed to enter all other stores. Restaurants, cinemas, movie theaters, and other “leisure facilities” are limited to vaccinated and recovered individuals as well.

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Courts Suspend Federal Contractor Vaccine Mandate in Three States and Healthcare Worker Vaccine Mandate Nationwide

This week, federal district courts issued multiple preliminary injunctions temporarily halting the enforcement of two federal vaccine mandates: Executive Order 14042 (EO 14042), which requires certain federal contractors to ensure that their employees are vaccinated, and the interim final rule issued by the Centers for Medicare & Medicaid Services (CMS), which requires staff at health care facilities that participate in Medicare and Medicaid programs to be vaccinated (CMS rule). The current preliminary injunction halting the enforcement of EO 14042 applies only to Kentucky, Ohio and Tennessee. The combination of the preliminary injunctions preventing the enforcement of the CMS rule, however, applies nationwide.

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The U.S. Department of Labor Announces Final Rule to Increase Minimum Wage for Certain Federal Contractors

On November 22, 2021, the U.S. Department of Labor (DOL) finalized a rule to increase the hourly minimum wage for employees of certain federal contractors beginning January 30, 2022. The final rule implements Executive Order 14026, which President Joe Biden signed earlier this year.

The final rule requires certain federal contractors to pay workers on government contracts at least $15 per hour beginning January 30, 2022. After 2022, the minimum wage will be adjusted annually for inflation at a rate set by the Secretary of Labor.

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OSHA Suspends Emergency Temporary Standard (ETS) Enforcement Following Fifth Circuit Ruling – Now What?

On Friday, November 12, 2021, in BST Holdings, L.L.C, et al. v. Occupational Safety and Health Administration (OSHA), Case # 21-60845, the United States Court of Appeals for the Fifth Circuit issued an order affirming its November 6, 2021 order, staying the implementation and enforcement of OSHA’s November 5, 2021 Emergency Temporary Standard (ETS). The ETS requires employers with 100 or more employees to ensure that their employees who report to a workplace are vaccinated against COVID-19 or submit to weekly COVID-19 testing. The Fifth Circuit, which many consider to be the most politically conservative of all the circuit courts, issued its order following an expedited briefing schedule, prompted by an emergency motion to stay the ETS filed by various individuals, employers, religious groups and states. Pending further judicial review, the order barred OSHA from taking steps to implement or enforce the ETS. In response, OSHA has suspended all activities related to the ETS for the time being, stating: “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” Businesses now face an uncertain future with OSHA conceding that it will abide by the court’s order while pursuing its reversal. Because similar challenges to the ETS have been brought in all but one of the 12 federal circuit courts of appeals, the U.S. Judicial Panel on Multidistrict Litigation will conduct a lottery as required by statute, pursuant to 28 U.S.C.A. §2112 (a)(3),  likely this week, to select which federal circuit will hear appeals in the numerous challenges, including with respect to the Fifth Circuit’s order. Any outcome from the circuit selected in the lottery process may and likely will be appealed to the U.S. Supreme Court.

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