State v. Nelson

• Citation: 576 F.Supp.3d 1017
• Decision Date: 22 December 2021
• Docket Number: CASE NO. 8:21-cv-2524-SDM-TGW
• Parties: STATE of Florida, Plaintiff, v. Bill NELSON, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

576 F.Supp.3d 1017

STATE of Florida, Plaintiff,

v.Bill NELSON, et al., Defendants.

CASE NO. 8:21-cv-2524-SDM-TGW

United States District Court, M.D. Florida, Tampa Division.

Signed December 22, 2021

James Hamilton Percival, II, Henry Charles Whitaker, Natalie Christmas, Office of the Florida Attorney General, Tallahassee, FL, for Plaintiff.

Kevin Joseph Wynosky, Zach A. Avallone, Vinita Andrapalliyal, DOJ-Civ, Civil Division, Federal Programs Branch, Washington, DC, for Defendants.

ORDER

STEVEN D. MERRYDAY, UNITED STATES DISTRICT JUDGE

In a fourteen-count complaint, Florida sues President Biden, the Office of Management and Budget (OMB), and the General Services Administration (GSA), among others, and claims that the vaccination

requirement in the recent executive order exceeds the President's authority and violates procedural requirements. Florida moves (Docs. 10, 24) to preliminarily enjoin Executive Order 14042. The defendants respond (Docs. 21, 26) in opposition.

BACKGROUND

1. Executive Order 14042

On September 9, 2021, President Biden announced his "Path Out of The Pandemic: COVID-19 Action Plan" and issued Executive Order 14042, titled "Ensuring Adequate Safety Protocols for Federal Contractors." By a several-step process, the executive order requires each employee of a federal contractor or subcontractor (including each subcontractor of a subcontractor, subcontractor of a subcontractor of a subcontractor, and so forth) to become "fully vaccinated" against COVID-19. First, Executive Order 14042 requires the Safer Federal Workforce Task Force, established by another executive order in January 2021, to publish "guidance" that prescribes "adequate COVID-19 safeguards" with which each employee of each federal contractor, subcontractor, and so forth must comply. Executive Order 14042 states in Section 5(b) that by September 24, 2021, the task force:

[S]hall, as part of its issuance of Task Force Guidance, provide definitions of relevant terms for contractors and subcontractors [and] explanations of protocols required of contractors and subcontractors to comply with workplace safety guidance[.]

Second, Executive Order 14042 states in Section 2(c) that after the task force issues the guidance the Director of OMB "shall, as an exercise of the delegation of [the President's] authority under the Federal Property and Administrative Services Act ... determine whether such Guidance will promote economy and efficiency in Federal contracting if adhered to by Government contractors and subcontractors." If OMB determines that the executive order promotes "economy and efficiency," OMB must publish the guidance in the Federal Register.

Third, Executive Order 14042 in Section 2(a) states, "Executive departments and agencies, including independent establishments ... shall, to the extent permitted by law, ensure that contracts and contract-like instruments ... include a clause" specifying "that the contractor or subcontractor shall, for the duration of the contract, comply" with task force guidance that OMB approves. Executive Order 14042 applies expansively "to any new contract; new contract-like instrument; new solicitation for a contract or contract-like instrument; extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument" that "is a procurement contract or contract-like instrument for services, construction or a leasehold interest in real property"; "is a contract or contract-like instrument for services"; "is a contract or contract-like instrument for concessions"; or "is a contract or contract-like instrument entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public."

Further, Executive Order 14042 requires each covered contractor to include in each subcontract at "any tier" the clause requiring compliance with the task force's guidance. However, Executive Order 14042 in Section 5(b) excludes, among other things, grants and contracts and subcontracts not exceeding the "simplified acquisition threshold" of $250,000. Executive Order 14042 under Section 6 "is effective immediately and shall apply" to contracts executed, exercised, extended, renewed, or modified after October 15, 2021.

Fourth, although "effective immediately" and directing each agency to include the compliance clause in every procurement contract, Executive Order 14042 requires the Federal Acquisition Regulatory Council, an entity charged under 41 U.S.C. § 1303 with establishing "a single Government-wide procurement regulation," to "amend" the Federal Acquisition Regulation (FAR) to "provide for inclusion [of the compliance clause] in Federal procurement solicitations and contracts subject to this order."

In sum, the executive order (1) requires the task force to prepare "guidance" about "adequate COVID safety protocols," (2) requires the Director of OMB to determine whether the guidance "promotes economy and efficiency," (3) requires each federal agency to include in federal contracts a clause requiring compliance with the task force's guidance if approved by OMB, and (4) directs separately the FAR Council to amend the FAR to include the clause requiring compliance with task force guidance approved by OMB. In effect, the executive order requires inclusion of a contract clause that serves as a vehicle through which approved task force guidance and any amendments approved by OMB become binding on private parties and their employees, including those who directly contract with the government and those who contract with those who contract with the government and so forth without bound until a contract fails to exceed the $250,000 threshold.

2. The task force's guidance

On September 24, 2021, the task force issued "COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors." The guidance states that "[o]ne of the main goals" of President Biden's "Path Out of the Pandemic: COVID-19 Action Plan" is "to get more people vaccinated" and that "[a]s part of that plan, the President signed Executive Order 14042."

The task force's guidance requires "covered contractor employees" to become "fully vaccinated" against COVID-19 by December 8, 2021, or by the "first day of the period of performance" on "a newly awarded covered contract" or on "an exercised option or extended or renewed contract[.]" Under the guidance, "full vaccination

" against COVID-19 occurs two weeks after an employee receives a single-dose vaccine or the final dose of a two-dose vaccine. But an employee is "required to be vaccinated" even if the employee recovered from an earlier COVID-19 infection or received a positive antibody test.¹

The guidance defines "covered contractor employee" to mean "any full-time or part-time employee of a covered contractor" (1) "working on or in connection with a covered contract" or (2) "working at a covered contractor workplace" even if the employee is not "working on or in connection with a covered contract." The guidance defines "covered contract" to mean "any contract or contract-like instrument that includes the clause" required by the expansive scope of Section 5(a) of Executive Order 14042.

The guidance explains that an employee works "in connection with" a covered contract if the employee "perform[s] duties necessary to the performance of the covered contract" even if the employee is "not directly engaged in performing the specific work called for by the covered contract, such as human resources, billing, and legal review[.]" An employee working "in connection with" a covered contract must become fully vaccinated even if working exclusively from home and "never work[ing] at either a covered contractor workplace or Federal workplace during the performance of the contract."

The guidance defines "covered contractor workplace" to include (1) a "Federal workplace," meaning "any place, site, installation, building, room, or facility in which any Federal executive department or agency conducts official business, or is within an executive department or agency's jurisdiction, custody, or control" and (2) "a location controlled by a covered contractor" at which "any employee working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract." A location remains a "covered contractor workplace" even if entirely outdoors.

Further, the guidance requires the contractor to include the clause in subcontracts and states:

The prime contractor must flow the clause down to first-tier subcontractors; higher-tier subcontractors must flow the clause down to the next lower-tier subcontractor, to the point at which subcontract requirements are solely for the provision of products.

(Guidance at 12)

In sum, an employee working "in connection with" a federal contract must become fully vaccinated even if the employee works exclusively from home. And an employee not working in connection with a federal contract must nonetheless become fully vaccinated unless, as the guidance elaborates, the employer "can affirmatively determine" that the employee "will not come into contact with a covered contractor employee," including contact "through use of common areas such as lobbies, security clearance areas, elevators, stairwells, meeting rooms, kitchens, dining areas, and parking garages."

Also, the task force's guidance imposes masking and physical distancing requirements. An unvaccinated employee isolated from employees working "on or in connection with" a federal contract nonetheless "must wear a mask ... regardless of the level of community transmission in the area" and must "[t]o the extent practicable ... maintain a distance of at least six feet from others at all times, including in offices, conference rooms, and all other communal work spaces."

The masking and physical distancing requirements apply even to a...