And the twists and turns keep coming . . .

The federal court that issued a nationwide injunction of Executive Order (EO) 14042, “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” has issued a new Order stating that it enjoined only the vaccine requirement of the EO’s implementing tool: the Safer Federal Taskforce Guidance.

The Administration, however, has not yet updated its guidance to reflect this new development.

Read our most recent client alert for all of the details.

As previously reported, President Biden’s Federal Contractor Vaccine mandate is under a nationwide injunction and that does not look to be changing anytime soon.

In December 2021, the Administration filed their appeal of the preliminary injunction ruling to the 11th Circuit Court of Appeals and requested a stay of the injunction. On December 17, 2021, the 11th Circuit denied the motion to stay the preliminary injunction, stating that the government failed to establish that it would be irreparably injured absent a stay. On December 21, 2021, the Court pushed back the briefing schedule by roughly two weeks and set oral argument for the week of April 4, 2022. On December 22, 2021, the Parties filed an unopposed motion to expedite oral argument, scheduling it for no later than the end of February 2022. The 11th Circuit denied the Parties’  motion to expedite oral argument, claiming that the Court had already “expedited briefing and oral argument” (despite the fact that the Court had delayed the briefing schedule on December 21, 2021).  As a result, the current schedule is as follows:

  • January 18, 2022 – Deadline for Defendants to file initial brief
  • February 8, 2022 – Deadline for Plaintiffs to file answer
  • February 22, 2022 – Deadline for Defendants to file reply
  • April 4, 2022 – Oral argument

Today, January 21, 2022, Judge Jeffrey Brown from the Southern District of Texas granted a separate nationwide injunction of the federal employee Vaccine mandate Executive Order 14043 in the case of  Feds for Medical Freedom et al v. Biden, S.D. Tex., No. 3:21-cv-00356.  Judge Brown specifically ordered the government is “enjoined from implementing or enforcing Executive Order 14043 until this case is resolved on the merits.”

Stay tuned for any new developments.

As the calendar turns over and employers start preparing for 2022, the annual EEO-1 reporting obligation may or may not be on the top of the “To-Do” list, and understandably so.  However, it should be.

The EEOC has provided recent updates about timing of the required filing and announced the discontinuation of the use of Type 6 reports for multi-establishment employers.

In an announcement posted on the EEO-1 reporting website, EEOC reiterated the “tentatively scheduled” opening of the 2021 EEO-1 Component 1 data collection portal to be April 12, 2022 with the deadline for filing to be May 17, 2022, just 6 weeks later.   No explanation was provided for the shortened reporting window.  However, the reporting deadline has been subject to limited extension in past years.

In addition to providing the update on the portal opening and reporting deadline, the most recent update announced EEOC’s discontinuation of the Type 6 Establishment Report for employers who have establishments with fewer than 50 employees.  Instead, employers will now be required to use the Type 8 report.  Citing the Agency’s continuing efforts of “modernization” and work to improve the quality of data, the EEOC says the change will

allow the EEOC to collect more accurate employee demographic data in support of the agency’s mission to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace.

Type 6 reports allowed employers to report only the total number of employees at an establishment with fewer than 50 employees, in lieu of providing demographic data by EEO-1 category for each location.  By comparison, the Type 8 Report requires submission of demographic data for an employer’s small establishments.  See EEOC’s updated Fact Sheet for more information on the various types of EEO-1 Reports.

The discontinuation of the Type 6 is not wholly unexpected after the Agency curtailed the availability of the report during the 2019 and 2020 reporting periods to only those employers who had previously submitted Type 6 Reports.  The notice states

All filers who were permitted to submit a Type 6 Report for the 2019/2020 EEO-1 Component 1 data collections have been notified via email regarding the discontinuation of the Type 6 Report so these filers may prepare for the opening of the 2021 EEO-1 Component 1 filing using Type 8 Reports.

We will continue to monitor this situation and provide any new updates.

The U.S. Department of Labor, including OFCCP, recently issued its Fall 2021 Regulatory Agenda, which identifies the regulatory goals the Agency would like to achieve during the fiscal year and beyond.  While OFCCP may not complete all (or even any) of these goals during the current fiscal year, the Agenda provides insights into the Agency’s objectives.

The following are the more important and substantive items in OFCCP’s Agenda.

  • Proposal to Rescind Implementing Legal Requirements Regarding the Equal Opportunity Clause’s Religious Exemption

As reflected in an earlier blog post, OFCCP has previously announced its intention to rescind the “problematic” Religious Exemption Rule that the Trump administration implemented.

  • Notification of Supply and Service Subcontract Awards

OFCCP has long been interested in better identifying for audit covered subcontractors and has previously proposed collection of this information as part of the revised scheduling letter (a suggestion it ultimately abandoned) as well as a suggestion it would implement a requirement for subcontractor disclosure as part of the AAP certification process.  The current proposal would add language to the Executive Order 11246 regulations to require contractors notify OFCCP when they award supply and service subcontracts. “The notice would include information currently unavailable to OFCCP, enabling it to schedule supply and service subcontractors for compliance evaluations.”

In conjunction with the AAP certification requirement, this requirement could significantly change the compliance landscape for covered subcontractors by making them more susceptible to OFCCP compliance reviews.  On the other hand, this might also assist employers to better identify if they are, in fact, covered subcontractors.  As it stands now, some employers are uncertain whether they provide supplies or services to prime federal contractors or upper-tier subcontractors that are “necessary to the performance of” those contracts and subcontracts, triggering AAP obligations.   This proposal will likely draw significant feedback when proposed.

  • Access to Records Regulatory Updates

This proposal would make changes to 41 CFR parts 60-1 and 60-40 in order to bring OFCCP’s Freedom of Information Act regulations in line with relevant legal authorities and precedential case law, and to ensure consistency among OFCCP’s regulations on access to records.

Although it is not clear what regulatory changes would be made, it appears this Agenda item relates to public access to EEO-1 Reports that OFCCP collects during compliance reviews.  OFCCP currently does not provide public access to EEO-1 Reports in its files, but evolving caselaw may require a change.

  • Modernizing Affirmative Action Programs, Recordkeeping, and Other Components of the Executive Order 11246 Supply and Service Obligations for Federal Contractors and Subcontractors

This broad item could cover a host of changes, none of which is particularly clear in OFCCP’s description, but is consistent with previous remarks from OFCCP Director Jenny Yang about her desire and efforts to modernize the agency.  OFCCP says it:

… will propose changes to modernize its Executive Order 11246 compliance program for federal supply and service contractors and subcontractors, including but not limited to recordkeeping and affirmative action program obligations.  In addition, the proposal will consider modifications in light of Executive Order 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.

Based on the reference to Executive Order 13988, OFCCP might require more robust affirmative action obligations regarding the LGBTQ+ community.

  • Modification of Procedures to Resolve Potential Employment Discrimination

This Agenda item could also prove to be significant for contractors in that it appears OFCCP would like to undo the Agency’s efforts under former Director Craig Leen to clarify and make more regimented the processes OFCCP must follow when asserting discrimination during an audit.

This proposal would modify certain provisions set forth in the November 10, 2020 final rule, Nondiscrimination Obligations of Federal Contractors and Subcontractors: Procedures To Resolve Potential Employment Discrimination (85 FR 71553) and make other related changes to the pre-enforcement notice and conciliation process. The proposal will promote effective enforcement through OFCCP’s regulatory procedures.

As discussed in an earlier blog, the final rule made a number of changes, that:

  • Clarify that evidentiary standards that OFCCP must meet for a Pre-Determination Notice (PDN) must also be met for a Notice of Violation (NOV).
  • Establish the use of the terms “qualitative” and “quantitative” evidence to describe the type of evidence OFCCP must identify in support of a PDN or NOV. Specifically, replacing reference to non-statistical and statistical evidence with these broader, more encompassing terms.
  • Codify the use of the Agency’s consideration of practical significance in assessing potential violations and “help the agency ensure it is directing its efforts effectively.”
  • Identify and differentiate procedures and burdens for disparate treatment versus disparate impact cases. This includes the requirement that OFCCP provide qualitative evidence for all disparate treatment cases and identify a policy or practice causing adverse impact with factual support for disparate impact cases.
  • Establish that OFCCP must explain the basis for its findings, and for pay allegations provide the model, variables used and explanation why variables were excluded from its analysis upon request of the contractor.
  • Provide the framework for contractors and OFCCP to explore early resolution procedures currently in use by OFCCP, as specifically set out in the Early Resolution Procedures program, during a review.

The final rule was largely seen as a positive development for the contractor community because it addressed criticisms around transparency and certainty that have plagued the Agency for years.

When (and if) OFCCP takes steps to propose regulations or modifications to existing regulations, we will blog about those proposals.

Thankfully, the Office of Management and Budget has quickly issued guidance on the impact of yesterday’s federal court ruling enjoining the Biden Administration’s federal contractor vaccine mandate.  The guidance, as reported on the Safer Federal Workforce Task Force website, states for existing contracts that include Executive Order 14042 implementing language:

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 . . .

The Task Force explains:

The Office of Management and Budget has issued guidance on implementing requirements of Executive Order 14042 while ensuring compliance with applicable court orders and injunctions, including those that are preliminary and may be supplemented, modified, or vacated, depending on the course of ongoing litigation.

Thus, it seems OMB has crafted this guidance to allow for potential changes in the applicability of the current injunction order and/or future litigation impacting the enforceability of the Executive Order.  Remember, in addition to this nationwide injunction, there still remains the three-state injunction issued prior to yesterday’s order in a separate litigation challenging the Executive Order.

It is important to keep in mind however, that ” federal agency COVID-19 workplace safety protocols for Federal buildings and Federally controlled facilities still apply in all locations. Contractor employees working onsite in those buildings and facilities must still follow Federal agency workplace safety protocols when working onsite.”

As always we will continue to monitor the situation as provide regular updates.

As set forth in more detail in its Order, a Georgia federal district court judge today issued an injunction halting enforcement of Executive Order 14042, which requires that federal contractors and subcontractors with specific types of covered contracts ensure that their covered employees are fully vaccinated against COVID-19 by January 18th, 2022.

As the Order states,

Accordingly,  the Court ORDERS that Defendants are ENJOINED, during the pendency of this action or until further order of this Court, from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.

In a brief 28-page decision U.S. District Court Judge R. Stan Baker found

it necessary, in order to truly afford injunctive relief to the parties before it, to issue an injunction with nationwide applicability.

The case was initially filed by the states of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia.  However, Associated Builders and Contractors, Inc. a nationwide trade organization “representing tens of thousands of contractors and subcontractors that regularly bid on and work on federal contracts for services” petitioned to intervene in the suit and joined the states in their request for a preliminary injunction.

In granting the injunction, Judge Baker found

The Court finds that Plaintiffs have a likelihood of proving that Congress, through the language it used, did not clearly authorize the President to issue the kind of mandate contained in EO 14042, as EO 14042 goes far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead, in application, works as a regulation of public health, which is not clearly authorized under the Procurement Act.

The Court also found that “Plaintiffs have a likelihood of proving that EO 14042 does not have a sufficient nexus to the purposes of the Procurement Act and thus does not fall within the authority actually granted to the President in that Act.”

This Order follows the order of a Kentucky federal court also enjoining enforcement of the Executive Order in Kentucky, Ohio and Tennessee.  In contrast, today’s Order halts enforcement of the Executive Order nationwide.

In addition, both OSHA’s Emergency Temporary Standard (ETS) and the requirements issued by the Centers for Medicare and Medicaid Services (CMS) that employees and healthcare workers be fully vaccinated have been enjoined nationwide.

Thus, each of President Biden’s federal-level efforts to combat COVID-19 has now been enjoined by federal courts.

We will continue to provide updates on the status of Executive Order 14042 and anticipate that a final determination of the viability of the Executive Order may be months away.

As anticipated, OFCCP has published additional information, including an implementation timeline, for its Affirmative Action Verification Interface (AAPVI) Portal.  OFCCP provided the following timeline in its communication to contractors:

On Feb. 1, 2022, contractors may begin registering for access to the portal. OFCCP will also send an e-mail to each covered federal contractor in its jurisdiction whose email information is available in its system inviting them to register.

On March 31, 2022, contractors will be able to utilize the certification feature in the portal to certify their AAP compliance.  

By June 30, 2022, existing contractors must certify whether they have developed and maintained an affirmative action program for each establishment and/or functional unit, as applicable.

 

Additional information will be forthcoming from the Agency.  But in the meantime, OFCCP is directing contractors to its Contractor Portal Landing Page as well as its Frequently Asked Questions.

We will be reviewing this information and will provide additional updates and insights in the coming days.

A federal judge in the case of Commonwealth of Kentucky v. Biden has decided President Joe Biden likely overstepped his authority with Executive Order 14042 in requiring federal contractors to mandate COVID-19 vaccinations for their employees.  Adding additional complexity and confusion to the already muddied landscape, the decision enjoins the Order for going into effect in Kentucky, Ohio and Tennessee -the three states that challenged the Executive Order in the lawsuit.  Federal contractors and subcontractors subject to EO 14042 and the implementing FAR Clause are relieved, at least temporarily, from implementing the requirements for employees in the three named states.  This injunction throws a curve ball for Tennessee employers in particular.

Those employers with employees in Tennessee should be mindful of the Tennessee law that, among other things, prohibits private employers from requiring employees to show proof of COVID-19 vaccination or taking adverse action against an employee who does not show proof of vaccination if they object for any reason.  Under that law If an employer would lose federal funds, the employer can file a petition for relief from the state controller, but with EO 14042 enjoined this option will not be available.

The case is Commonwealth of Kentucky et al. v. Biden et al., case number 3:21-cv-00055, in the U.S. District Court for the Eastern District of Kentucky.

The DOL today published the Final Rule implementing the $15 per hour minimum wage for federal contractor workers who work on or in connection with covered contracts, which President Biden authorized by in Executive Order 14026.   Building on former President Obama’s Executive Order 13658, President Biden in April 2021 issued the Order and the DOL published a Proposed Rule in July 2021.

The Order applies to “new contracts” on and after January 30, 2022.  However, the term “New Contract” has been expanded and applies to:

  • Extensions or renewals of existing contracts or contract-like instruments; and exercises of options on existing contracts or contract-like instruments on or after January 30, 2022.

Thus, the federal government may exercise an option in an “old” contract not subject to the $15 rate which would make the contract subject to the new $15 wage requirement.

Contracts resulting from solicitations issued before January 30, 2022 and entered into on or between January 30, 2022 and March 30, 2022 are exempted.  “However, if such a contract is subsequently extended or renewed, or an option is subsequently exercised under that contract, …” the $15 wage will apply.

Recall, also, that the $15 minimum wage applies only to certain types of contracts:

  1. Procurement contracts for construction covered by the Davis-Bacon Act(DBA), but not the Davis-Bacon Related Acts;
  2. Service Contract Act (SCA) covered contracts;
  3. Concession contracts;

Concession contract means a contract under which the federal government grants a right to use federal property, including land or facilities, for furnishing services. The term concessions contract includes but is not limited to a contract the principal purpose of which is to furnish food, lodging, automobile fuel, souvenirs, newspaper stands, and/or recreational equipment, regardless of whether the services are of direct benefit to the Government, its personnel, or the general public;

4. Contracts related to federal property and the offering of services the general public, Federal employees, and their dependents.

In contrast to Executive Order 14042 requiring COVID vaccines for federal contractors, procurement contracts for services – distinguished from SCA contracts – are not covered for purposes of the $15 minimum wage.  In addition, the Final Rule specifically carves out the following:

  • Contracts for the manufacturing or furnishing of materials, supplies, articles, or equipment to the Federal Government;
  • Grants;
  • Contracts or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act;
  • Contracts excluded from coverage under the SCA or DBA specifically excluded in the implementing regulations;
  • Other contracts specifically excluded. See Final Rule Section 23.40.

Similarly, not all federal contractor workers or employees are entitled to the $15 wage.  Rather, federal contractors must so compensate “workers.”  That term means:

  • Any person (employee, independent contractor or apprentice in a registered program) engaged in performing work on or in connection with a covered contractor or subcontract; and,
  • Whose wages under such contract are governed by the Fair Labor Standards Act, the Service Contract Act, or the Davis-Bacon Act, other than individuals employed in a bona fide executive, administrative, or professional capacity.

Moreover, a contractor need not pay the $15 wage to any worker whose wages are governed by the FLSA (but not the DBA) who only works “in connection with” a covered contract fewer than 20% of their workweek in any particular week.

As with the COVID vaccination executive order, the scope of workers working “in connection with” a covered contract is broad:

  • A worker performs “on” a contract if the worker directly performs the specific services called for by the contract.
  • A worker performs “in connection with” a contract if the worker’s work activities are necessary to the performance of a contract but are not the specific services called for by the contract.

The $15 wage is mandatory, however, only when a covered worker is performing work on or in connection with a covered contract, not for all work if the employee does not work on or in connection with the contract at all times

“The contractor must pay each worker performing work on or in connection with a covered contract no less than the applicable Executive Order minimum wage for all hours worked on or in connection with the covered contract…”

Keep in mind also that tipped employees are treated separately pursuant to Section 23.280 of the Final Rule.

Some federal contractors may not have any covered contracts/subcontracts or any workers earning less than $15 per hour on covered contracts.  Thus, determining covered contracts and current wages for workers is the place to start.

Updated! The Safer Federal Workforce Task Force has updated the error in the vaccination deadline reported yesterday, correcting January 18, 2021 to January 18, 2022.

Vaccination of covered contractor employees, except in limited circumstances where an employee is legally entitled to an accommodation Covered contractors must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. Covered contractor employees must be fully vaccinated no later than January 18, 2022. After that date, all covered contractor employees must be fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an exercised option or extended or renewed contract when the clause has been incorporated into the covered contract.


On November 10, the Safer Federal Workforce Task Force again updated the binding Guidance for Federal Contractors and Subcontractors implementing Executive Order 14042, and issued new and updated FAQs for federal contractors.

January 18, 2022 “Full Vaccination” Deadline is “Official” 

The first order of business was to officially extend the full vaccination deadline from December 8, 2021 to January 4, 2022, as stated in the White House Fact Sheet regarding the OSHA Emergency Temporary Standard (ETS).  As we addressed last week, the deadline was extended to correspond with the ETS and CMS deadlines.  Specifically, the fact sheet stated employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022.

Recall, however, that the Executive Order’s definition of “fully vaccinated” is two weeks after a last vaccine shot:

  • Fully vaccinated – People are considered fully vaccinated for COVID-19 two weeks after they have received the second dose in a two-dose series, or two weeks after they have received a single-dose vaccine. There is currently no post-vaccination time limit on fully vaccinated status; should such a limit be determined by the Centers for Disease Control and Prevention, that limit will be considered by the Task Force and OMB for possible updating of this Guidance.

Thus, the critical deadline is January 18, two weeks after the deadline to get a final dose.  January 4 will be the last day a covered employee could receive a final dose and be fully vaccinated by January 18.  The newly updated Guidance actually uses the date of January 18, 2021, but this is obviously a typo which we think will likely be corrected imminently by the TaskForce.

Given the Fact Sheet is not itself regulatory action, there was some confusion as to whether the deadline had been “officially” extended, especially given that the ETS was subsequently enjoined by the Fifth Circuit Court of Appeal.  Because the Guidance implements Executive Order 14042, the deadline has now been officially extended.

New and Updated FAQs

 None of the new or updated FAQs is particularly significant but they are helpful.  A new FAQ provides a link to signage for employees regarding the vaccine, masking and distancing requirements:

  • NEW Q: Is there sample signage that a covered contractor can post at entrances to covered contractor workplaces providing information on safety protocols?
  • A: Yes. Covered contractors should post signage at entrances to covered contractor workplaces providing information on safety protocols for fully vaccinated and not fully vaccinated individuals and instruct individuals to follow the appropriate workplace safety protocols while at the covered contractor workplace. Sample signage for areas of high or substantial levels of community transmission can be found here. Sample signage for areas of low or moderate levels of community transmission can be found here.

Another updates CDC guidance regarding when a vaccination should be delayed.

Given the new deadline, this FAQ has also been updated (unfortunately with the same obvious typo):

  • UPDATED Q: Are the workplace safety protocols enumerated in the Task Force Guidance for Federal Contractors and Subcontractors the same irrespective of whether the work is performed at a covered contractor workplace or at a Federal workplace?

 

  • A: Yes. The Task Force Guidance applies to all covered contractor employees and to all contractor or subcontractor workplace locations.  While at a Federal workplace, covered contractor employees must also comply with any additional agency workplace safety requirements for that workplace. Because covered contractor employees working on a covered contract need to be fully vaccinated after January 18, 2021, covered contractor employees who work only at a Federal workplace need to be fully vaccinated by that date as well, unless legally entitled to an accommodation.

We are monitoring the Task Force website on a daily basis for updates to the Guidance and the FAQs, so please check back soon.