Federal Contractor Vaccine Mandate Enjoined Nationwide

What to Know

• On December 7, 2021, a federal judge in Georgia enjoined the federal contractor vaccine mandate nationwide, precluding its enforcement throughout the 50 states and outlying areas. 
• On November 30, 2021, a federal judge previously granted an injunction halting enforcement of the federal contractor vaccine mandate in Kentucky, Ohio, and Tennessee. You can read our analysis of that order here. 
• The government is expected to appeal, and similar litigation remains pending in multiple other states.
• You can read more of our analysis of Executive Order 14042 and the federal contractor vaccine mandate generally here and here. 

Enforcement Halted Nationwide

While much ink has been spilled over the applicability and ramifications of the federal contractor vaccine mandate, a federal court in Georgia has halted enforcement (at least temporarily) by issuing a nationwide injunction against the mandate. On December 7, Judge R. Stan Baker of the United States District Court for the Southern District of Georgia granted a preliminary injunction precluding the US government 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 granting the injunction, Judge Baker found it likely that the Federal Property and Administrative Services Act, 40 U.S.C. § 101 et seq., did not authorize President Biden to issue Executive Order 14042 (and its corresponding vaccine mandate) because it “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.”

Additionally, the Court found that the EO 14042 likely 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. The Court noted that, while courts have held that a variety of types of executive orders were authorized under the Procurement Act, “none have involved measures aimed at public health and none have involved the level of burdens implicated by EO 14042, which has already required and will continue to require extensive and costly administrative work by employers and will force at least some individuals to choose between getting medical treatment that they do not want or losing their job (and facing limited job replacement options due to the mandate).”

Although the Court’s order found President Biden likely lacked authority to issue EO 14042, the order only enjoined enforcement of the vaccine mandate. Interestingly, neither the executive order itself nor the contractual clauses that have been issued to implement it specifically mention a vaccine mandate. Instead, the EO and the clauses require compliance with the Safer Federal Workforce Task Force Guidance. The vaccine mandate is included as the core component of the Task Force Guidance, but the Guidance also includes requirements for masking and distancing at contactor workplaces and the designation of a person to ensure masking and distancing requirements are communicated with the organization. These separate requirements may survive the vaccine mandate injunction.

The government is expected to appeal the decision. An appeal would go to the United States Court of Appeals for the Eleventh Circuit.

In similar litigation in Kentucky, where a U.S. District Court granted an injunction halting enforcement in Kentucky, Tennessee, and Ohio just days earlier, the government has already filed a motion for an emergency stay of the injunction while it appeals to the U.S. Court of Appeals for the Sixth Circuit. As litigation remains pending in five other states as well, we expect this issue may ultimately make its way to the Supreme Court of the United States.

What Contractors Should Do Now

Because of remaining legal uncertainty, it is too early for contractors to walk away entirely from their preparations to implement the vaccine mandate. Contractors might instead use the additional time provided by the stay to finalize the processes and procedures that already may be under development, in the event the injunction were reversed on appeal.

It is likely that Government agencies will continue to seek to include the contractual clauses in new or modified contracts under the conditions set forth in the EO (and also in contracts where the clause was not required by the EO) –on the theory that aspects of the EO other than the vaccine mandate survived the Court’s order. In such circumstances, it is advisable for the contractor to avoid any potential misunderstanding that the contractor voluntarily agreed to the vaccine mandate – by including language in the contract that notes enforcement of the vaccine mandate has been enjoined and future compliance is contingent upon a lifting of all applicable stays.

Contractors that already have agreed to the relevant contractual clauses (e.g. FAR 52.223-99, DFARS 252.223-7999) should be mindful that the Court’s Order does not unambiguously relieve contractors from other provisions of the Guidance unrelated to the vaccine mandate, such as the mask mandate, and that continued compliance is advisable until further clarification is provided.

Lastly, it should be noted, that although contractors are no longer required to insist that their employees be vaccinated, contractors are still permitted to insist upon vaccination for their own employees if they otherwise choose to do so. There is long-standing precedent for employers to insist upon vaccination for their employees (subject to reasonable accommodations for disability and/or sincerely held religious beliefs), and that issue was not considered as part of the litigation discussed above.