Last Friday, the Federal Government filed a status report with the U.S. District Court for the Western District of Oklahoma, identifying both its position with respect to the litigation and whether the United States intends to take any further action to implement or enforce Executive Order 14042. This report, which follows the Eleventh Circuit's decision to significantly narrow the scope of a nationwide preliminary injunction of Executive Order 14042's vaccine mandate, confirms the Federal Government and its agencies will not enforce the vaccine mandate pending the outcome of ongoing litigation.
Specifically, the Government stated that "federal agencies will remain precluded from taking any steps to enforce Executive Order 14042" until the Eleventh Circuit's mandate issues, which is not until at least October 18, 2022. The Government also recommended the district court not act "until a decision on Plaintiffs' request for a preliminary injunction becomes necessary—something that will not occur for at least another month, if it occurs at all." Should the district court wish to proceed, however, the Government stated it would rest on its existing briefs and suggested that, "if the Court is inclined to issue a preliminary injunction, the Eleventh Circuit's decision in Georgia counsels that any injunction should be narrowly tailored, and under no circumstances should it be nationwide in scope."
The Federal Government's position is consistent with updated guidance issued by the Safer Federal Workforce Task Force on August 31, 2022, which provides as follows:
Regarding Applicable Court Orders and Injunctions: To ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified, or vacated, depending on the course of ongoing litigation, the Federal Government will take no action to implement or enforce Executive Order 14042. 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.
As always, we will continue to monitor developments on the enforcement of Executive Order 14042 and the federal contractor vaccine mandate.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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