Alabama has a strong government contracting community — from Redstone Arsenal to Mobile, Fort Rucker to Anniston, there are ample opportunities to bid on federal work, and any number of companies to do it. One area of concern for contractors has been the federal contractor vaccine mandate — a mandate a federal court in Georgia recently blocked nationwide.
Several states — Alabama, Georgia, Idaho, Kansas, South Carolina, Utah and West Virginia — sued to stop enforcement of the mandate, which President Joe Biden issued by executive order on Sept. 9.
Judge R. Stan Baker of the Southern District of Georgia has issued a nationwide preliminary injunction barring the government from enforcing the mandate, and the U.S. has appealed that injunction to the 11th Circuit. Depending on the result in the 11th Circuit, the decision could be appealed to the U.S. Supreme Court.
What does it mean for you?
If you’re not a federal contractor (or subcontractor or lower-tier contractor to a federal contractor) very little. But if you are a federal contractor or subcontractor to a federal contractor — no matter what tier — this injunction is something you should be tracking.
If you are a prime contractor and your contract with the federal government includes FAR 52.223-99, then the government cannot enforce it against you — at least for now (more on that later). You can, of course, continue to abide by its terms, but you should be careful that doing so will not violate conflicting state and local laws. So if you do not wish to continue verifying your employees’ vaccination status, that’s OK — again, at least for now.
But you should know that this is a preliminary injunction only. That means it only lasts until the Northern District of Georgia can hold a trial on the merits of the claim. Not only that, but the government has appealed Judge Baker’s order to the 11th Circuit Court of Appeals. Depending on the outcome of that appeal, the injunction could go away in a matter of days or weeks. A best practice would be to continue putting infrastructure in place to comply with FAR 52.223-99 in case the 11th Circuit decides to dissolve the preliminary injunction, even if you do not require that all employees get vaccinated. Such steps would be drafting compliant vaccination policies, developing religious and health accommodation policies, and reviewing progressive discipline policies.
If you are a subcontractor subject to a mandatory flowdown of FAR 52.223-99, things are a little less clear. The injunction only applies to the federal government’s enforcement of the vaccine mandate, but your contract isn’t with the federal government — it’s with your prime contractor (or higher-tier subcontractor). That means that company you have a contract with may choose to go ahead and enforce the vaccine mandate (again, so long as doing so complies with state and local law). You should immediately contact your counterparty’s contract manager for clarification on its position.
Michael Rich is counsel at Burr & Forman and practices in the firm’s Mobile office. He represents government contractors in a range of matters, including bid protests, the Contract Disputes Act, False Claims Act litigation and employment issues. He may be reached at [email protected].