With the U.S. Supreme Court’s consideration of challenges to the OSHA Vaccination and Testing Emergency Temporary Standard and the CMS Vaccine Mandate making the headlines, less attention has been paid to the federal contractor vaccine mandate even though it remains a separate topic of continuing interest for many employers.

Presidential Executive Order 14042 (September 9, 2021) directed the federal agencies to contractually require certain federal contractors and subcontractors to implement COVID-19 workplace safety measures, including a vaccine mandate with no “testing” option.

Throughout the fall, many prime government contractors agreed to contractual language requiring compliance with the new obligations and, in turn, sought to require their subcontractors to also agree to these obligations. For reasons that we will return to at the end of this article, it should be noted that some higher-tier contractors sought to impose the mandate on their subcontractors even in circumstances in which the higher-tier contractor was not legally or contractually required to do so, and that some subcontractors voluntarily agreed to abide by the mandates even though they were not legally required to do so.

While many contractors and subcontractors were implementing the mandate by adopting policies, communicating to employees, considering employee accommodation requests, and sometimes beginning corrective action with regard to non-compliant employees, challenges to the federal contractor mandate were brought by various states in multiple federal district courts.

In December these challenges resulted in separate decisions in the Kentucky, Georgia, Louisiana, Missouri, and Florida federal district courts, which issued preliminary injunctions barring enforcement of the federal contractor mandate based on conclusions generally that the Executive Branch had not followed various required procedures for changes to federal contracting requirements and/or lacked the authority to impose the mandate. As a result of these decisions, enforcement of the mandate is currently enjoined nationwide.

While appeals from these decisions have been taken by the federal government to the Fifth, Sixth, Eighth and Eleventh Circuits, none of the appellate courts has granted the government’s requests for expedited review. At this time, it seems unlikely that any of these cases will be argued any earlier than April, with decisions not following for, perhaps, months. Therefore, even if the challenges to the federal contractor mandates ultimately fail, barring some new development, it seems unlikely that federal contractors will be required to comply with the mandates until much later this year. As to whether the challenges will ultimately succeed or fail cannot be predicted. However, it is noteworthy that all of the lowers courts that have so far reviewed the issue have found that the challengers are likely to ultimately prevail.

As long as the injunctions remain in place, it appears reasonably clear that the federal government cannot enforce the federal contractor mandates against federal contractors.

Nevertheless, employers that have entered into agreements regarding COVID-19 workplace safety measures may still need to consider whether their particular agreements remain enforceable.

As noted above, some federal contractors sought to impose COVID-19 workplace safety requirements on subcontractors using the same language that was being used to implement the federal contractor mandates, but under circumstances in which this was not required in connection with the federal contractor COVID-19 workplace safety mandates. Some contractors may have done so based on a mistaken understanding of the federal contractor requirements, but others simply wanted their subcontractors to implement safety measures that the contractors supported. And while some subcontractors may have incorrectly understood that they were obligated to agree to such requirements, others certainly understood that they were voluntarily agreeing to provisions that they were not legally obligated to accept.

Depending on the circumstances, such voluntary agreements between a higher-tier federal contractor and a subcontractor may remain lawful and enforceable, even if the agreements were entered into using the language of the federal contractor mandate. In other words, the preliminary injunctions would probably not bar the enforcement by private parties of their private agreements. Therefore, employers that have entered into contractual agreements to mandate vaccinations should consider whether those agreements were entered into pursuant to the enjoined executive order or were voluntary agreements between the parties. In the latter case, if the agreement was supported by adequate consideration, was not the result of mutual mistake, and is not being implemented in a jurisdiction that prohibits mandates, it may be enforceable. In such circumstances, a subcontractor may want to meet with its customer to understand the customer’s expectations before simply abandoning compliance with contract terms relating to a vaccine mandate or other COVID-19 workplace safety requirements.