Page 26 - COVID Executive Order Survival Guide Brochure

Does DOD’s October 18, 2021 Memorandum For Senior Pentagon Leadership That Allows For Testing Of Non-Vaccinated Contractors In Some Situations Preempt The Executive Order?
No. The DOD Memorandum does not preempt the EO. In fact, Section 1 of Attachment 2 of the Memorandum clearly states the “vaccination requirements for DOD contractor personnel will be in accordance with . . . Executive Order 14042 . . . .”
The confusion among some contractors seems to be caused by Section 1.c of the Memorandum Attachment, which stated as follows:
DoD contractor personnel who are not fully vaccinated against COVID-19 because they are not performing under a covered contract that requires COVID-19 vaccination, due to a legally required accommodation, or who decline to attest to their COVID-19 vaccination status will be subject to COVID-19 screening testing at least weekly as set forth in this guidance . . . .
Some argue that the inclusion of a testing option for those “who decline to attest to their . . . vaccination status” means that contractors can offer employees a vaccinate or test option as is permitted under the OSHA rule. We do not read the DOD guidance that way. The fact that DOD will not let contractors who refuse to attest onto a base without a test does not relieve the contractor of the obligation to adhere to all aspects of the EO, the Task Force Guidance, and the -99 clause.
I’ve Seen A Few State Governors And Legislators Taking Steps To Outlaw Vaccine Mandates And/Or Review Of Vaccination Cards. These Conflict With Our Obligations Under The President’s EO. How Are Contractors Handling The Conflict?
On October 11, 2021, the Governor of Texas issued an executive order prohibiting companies operating in Texas from compelling receipt of a COVID-19 vaccine by anyone who objects on the basis of “personal conscience” (as well as the standard religious and medical bases). Pew’s Stateline project published a useful article highlighting other governors and states taking or considering similar efforts. Unquestionably, these state efforts will cause great heartburn, and expense, for federal contractors operating in Texas and a few other states.
When evaluating these various state rules, keep in mind this basic principle: Lawful federal orders prevail over conflicting state orders. If we pop open our pocket Constitutions, we all will be reminded that Article VI provides that “This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby . . . .” Over the years, courts have made clear that federal Executive Orders fall within the scope of this “Supremacy Clause.” (For those of you who like to read case law, you can check out Old Dominion Branch No. 496 v. Austin, from 1974 (418 U.S. 264) to form your own opinion on this point.) As a general rule, Executive Orders are not typically struck down by the courts, but several have been over the years, from a particularly famous Supreme Court rejection of a Truman EO in 1952, to less notable judicial rejections of Clinton, Obama, Bush, and Trump EOs in more recent years.
Of course, if a federal court were to find EO 14042 illegal or unconstitutional, then a conflicting state order or law would take precedence – because it no longer would be in conflict. While one can take issue with elements of EO 14042 (just as one could challenge the legality of a “dynamic” FAR clause tied to an ever-changing Task Force website), there is not much about the rule that jumps out to us as blatantly illegal or unconstitutional. This certainly is not the first Executive Order to take advantage of the procurement process to implement social policy priorities. EO 11246, for example, imposed extensive equal opportunity and affirmative action requirements on federal contractors and subcontractors. Presidential powers are very high in the areas of national security, public health, and the executive procurement process, all of which the President invoked when he issued EO 14042. Moreover, the religious and medical carveouts further protect EO 14042 from a successful challenge.
PAGE 26 | EXECUTIVE ORDER 14042 SURVIVAL GUIDE
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