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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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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OFCCP Publishes 2021 Corporate Scheduling Announcement List for Upcoming Audit

Federal contractors should immediately review the Fiscal Year 2021 Corporate Scheduling Announcement List (CSAL), released on July 1 by the Office of Federal Contract Compliance Programs (OFCCP), to see if they have been selected for a future audit.

This CSAL notifies 750 Supply & Service establishments (locations) of upcoming audits and is the only advance notification to the contractor of the upcoming audit. In years past, establishments selected for an audit received notice by mail in the form of a Corporate Scheduling Announcement Letter. But now, OFCCP is exclusively posting the CSAL online.

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OFCCP Updates FY 2020 Supply & Service Pre-audit Scheduling List

Today, the Office of Federal Contract Compliance Programs (OFCCP) announced updates to its Fiscal Year (FY) 2020 Supply and Service Scheduling List by removing establishments previously selected for a focused review or compliance check. The amendment will have no impact on contractors with open or unscheduled audits. Remaining selected contractors should start reviewing their compliance efforts to reduce the risk of noncompliance findings.

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Federal District Court Issues Nationwide Temporary Ban on Executive Order 13950

Last week, the U.S. District Court for the Northern District of California issued a nationwide preliminary injunction banning the enforcement of Sections 4 and 5 of Executive Order 13950, a controversial federal directive purportedly enacted “to combat offensive and anti-American race and sex stereotyping and scapegoating” by prohibiting federal contractors and grantees from inculcating such views in their diversity and inclusion workplace trainings. While the preliminary injunction represents a significant win for the government contracting community, it is not a permanent injunction. It remains to be seen whether the government will appeal the order, or whether the incoming Biden administration will rescind the Executive Order in its entirety.

For the full alert, visit the Faegre Drinker website.