Page 29 - COVID Executive Order Survival Guide Brochure

What Is The Current Status Of Enforcement In Light Of The Other Injunctions?
In the wake of the Georgia injunction, the Task Force posted Guidance on its website suggesting the Government would not enforce EO 14042 or the implementing FAR clause. But the Task Force left itself an out. Here’s how the notice reads:
“For existing contracts or contract-like instruments (hereinafter ‘contracts’) that contain a clause implementing requirements of Executive Order 14042: The 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 (hereinafter, ‘Excluded State or Outlying Area’). In all other circumstances, the Government will enforce the clause, except for contractor employees who perform substantial work on or in connection with a covered contract in an Excluded State or Outlying Area, or in a covered contractor workplace located in an Excluded State or Outlying Area.” (emphasis ours)
This is very flexible language, which can be read to say (a) the Government will not enforce its clauses in states subject to an injunction or (b) the Government will not enforce any requirement prohibited by an injunction. Since the masking and physical distancing requirements no longer are prohibited by the Georgia Court’s injunction, technically, the Task Force’s language can be read to permit enforcement of these requirements.
Leaving the Task Force Guidance aside for the moment and looking solely at the various injunctions, here is where things currently stand:
Georgia Order: Enjoins the vaccine mandate in all 50 states; does not enjoin the masking or physical distancing mandate in any state.
“While there was evidence before the Court indicating that other COVID-19 safety-related requirements were also established as a result of the Executive Order (i.e., masking and physical distancing requirements), the evidence and arguments presented to the Court in the parties’ briefs and at the hearing on the Motion for Preliminary Injunction focused almost exclusively on the vaccination requirement, and the Court’s Order on the Motion for Preliminary Injunction did not reference, discuss, or analyze any of the other COVID-19 safety-related requirements.”
Kentucky Order: Enjoins the “vaccine mandate” for all covered contracts in Kentucky, Ohio, and Tennessee; it is unclear whether it enjoins masking or physical distancing in those three states.
“The Government is ENJOINED from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.”
Florida Order. Enjoins all aspects of the Task Force Guidance (the vaccine mandate and masking/physical distancing) in all contracts “within Florida.”
“[T]he defendants are PRELIMINARILY ENJOINED from enforcing within Florida any contract clause requiring compliance with the COVID Safety Protocols for Federal Contractors described in Executive Order No. 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, 86 Fed. Reg. 50,985 (Sept. 9, 2021)....”
Missouri Order. Enjoins the vaccine mandate “in all covered contracts in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming”; it is unclear whether it enjoins masking or physical distancing in those states.
“Defendants are enjoined from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming.”
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