Those following our coverage of the federal COVID Vaccine Mandate need to know about the latest twist. On the heels of the injunction against the OSHA Mandate for private employers, a Georgia Federal court judge issued a nationwide injunction blocking the COVID-19 Vaccine Mandate for federal contractors.
Based on the ruling, the Safer Federal Workforce webpage currently states that “[t]he Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order.”
The natural question for government contractors is – What on earth do we do now?? Here are five practical steps federal contractors can take to account for this latest development:
(1) Continue to Perform All Contractual Obligations.
Even amidst all of the on-going uncertainty, there is one thing we know for sure – the government will enforce all contracts as written.
If your current contracts include (or were modified to include) the Vaccine Mandate, you must comply (at least for the time-being). Barring a future change, the Mandate is a contractual requirement and a contractor that fails to perform is at risk for a breach of contract claim.
Worse still, a contractor that fails to make good faith efforts towards compliance could find itself as the unfortunate test case for the Vaccine Mandate under the Civil False Claims Act.
(2) Approach Future Modifications with Caution and Keep Track of Time & Costs.
If there is a pending request from the government to modify your contracts to include the Mandate – think twice and be proactive. Again, once you sign the modification it is part of the contract and you are on the hook to comply.
Prior to the injunction, we recommended that contractors include a reservation of rights language related to the time and costs associated with compliance before signing any modifications. If the government issues the modification unilaterally, contractors should still track the time and costs to support a future claim.
(3) Maintain Flexibility and Be Nimble.
The Biden Administration already appealed the Georgia decision, which could result in the return of the mandate. So, we may see even more back and forth on this issue before a final decision is made. Flexibility and good faith will be key for contractors in terms of dealing with the government, subcontractors, suppliers, and employees. Be consistent and focus on an approach that doesn’t paint you into a corner based on an outcome you can’t control.
(4) Communicate Up and Down the Chain
Continue to communicate with your government clients and your subcontractors or suppliers. The landscape is changing quickly and you want to keep communication lines open.
(5) Stay informed.
Nick Solosky is a Partner in Fox Rothschild’s Government Contracts Practice Group. You can reach Nick directly at NSolosky@FoxRothschild.com or 202-696-1460.