Federal Court Issues Nationwide Injunction Against Contractor Vaccine Mandate

UPDATED | Federal Court Issues Nationwide Injunction Against Contractor Vaccine Mandate

UPDATED: As of December 21, 2021: The U.S. Court of Appeals for the Eleventh Circuit Court refused to stay [1] the Georgia federal court’s nationwide injunction blocking the COVID-19 vaccine mandate for federal contractors from going into effect. Accordingly, the lower court’s order blocking enforcement of the federal contractor vaccine mandate remains in effect at this time.

On December 7, 2021, a Georgia federal court blocked the President’s vaccine mandate for federal contractors from going into effect. Unlike a similar injunction that a Kentucky federal court issued, this ruling puts a pause on the contractor vaccine mandate nationwide. Although this ruling suspends certain contractors’ requirements under the federal procurement regulations and guidance to ensure personnel are vaccinated, the case is ongoing and this issue will likely be revisited.

Background

This mandate originated from President Biden’s Executive Order 13991 [2], establishing the “Safer Federal Workforce Task Force.” The Task Force’s stated mission is to “provide ongoing guidance to heads of agencies on the operation of the Federal Government, the safety of its employees, and the continuity of Government functions during the COVID-19 pandemic.” Nine months later, President Biden signed Executive Order 14042 [3] in which he stated that the order would “promote[] economy and efficiency in Federal procurement by ensuring that the parties that contract with the Federal Government provide adequate COVID-19 safeguards to their workers performing on or in connection with a Federal Government contract or contract-like instrument,” which would “decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors at sites where they are performing work for the Federal Government.” EO 14042 mandated that the Task Force provide guidance regarding “adequate COVID-19 safeguards,” which must be complied with by federal contractors and subcontractors. On September 24, the Task Force issued its Guidance for Federal Contractors and Subcontractors pursuant to EO 14042 [4], which we summarized in a prior article. The Task Force Guidance requires all “covered contractor employees” to be fully vaccinated by January 18, 2022, [5] unless they are “legally entitled to an accommodation.”

Several states, state officials, and state agencies challenged the executive orders and guidance that came to be known as the federal contractor vaccine mandate and filed a complaint in a federal district court in Georgia on October 29, 2021 (which was one of several lawsuits), seeking, among other things, an injunction against the government’s enforcement of this requirement.

Court Finds Biden Administration Likely Exceeded Its Procurement Authority

The President expressly relied on the Federal Property and Administrative Services Act, 40 U.S.C. § 101 et seq., referred to as the “Procurement Act,” for his authority to issue EO 14042 “in order to promote economy and efficiency in procurement by contracting with sources that provide adequate COVID-19 safeguards for their workforce.” The Court, however, found that the authority under the Procurement Act did not “clearly” authorize the President to issue directives contained in EO 14042, such as mandating that federal contractors ensure employee vaccination. Specifically, the Court found the following:

…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. [6]

Based on this and other findings that the Court made, the Court blocked the contractor vaccine mandate from going into effect at this time. Notably, though, the Court stated upfront that the “case is not about whether vaccines are effective.” Because the Court agreed that “[t]hey are.” Instead, the issue was whether the executive branch exceeded its authority.

Connect with Ice Miller for More Details

If you have questions concerning the impact of this recent development, Ice Miller has extensive experience assisting companies to comply with federal contracting and employment-related laws and regulations. Please contact Tami Earnhart, a partner in the Labor and Employment Group and Health Care Group, who regularly advises companies in making personnel decisions and creating policies in compliance with state and federal laws; or Christian Robertson, a former U.S. Air Force officer, who regularly advises clients on federal contracting matters.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

[1] State of Georgia et al. v. Biden et al., No, 21-14269-F (11th Cir. Dec. 17, 2021).
[2] 86 Fed. Reg. 7,045–48 (Jan. 20, 2021).
[3] 86 Fed. Reg. 50,985–88 (Sept. 9, 2021).
[4] See Safer Federal Workforce Task Force, COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, available at https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20 210922.pdf.
[5] This deadline was extended from the previous deadline of December 8, 2021.
[6] State of Georgia et al. v. Biden et al., No. 1:21-cv-00163 (N.D. Ga. Dec. 7, 2021).