On Tuesday, December 7, 2021, a federal court in Georgia issued a nationwide injunction blocking the Biden Administration from enforcing its COVID-19 vaccine mandate for federal contractors and subcontractors. The court ruled that President Biden had likely exceeded the scope of his authority under the Federal Property and Administrative Services Act – known as the Procurement Act – to issue Executive Order 14042, which implemented the contractor vaccine mandate.
On November 30, a judge in Kentucky had issued a similar injunction applying only in Ohio, Kentucky, and Tennessee. Now, just a week later, the judge’s ruling in Georgia blocks the federal contractor and subcontractor vaccine mandate from being enforced in all states nationwide. As a result, the vaccine mandate, discussed in more detail in Calfee’s September 27 First Alert, cannot be enforced, at least temporarily, against any federal contractor or subcontractor anywhere in the country.
In this case, the State of Georgia, along with several other states, filed a lawsuit and sought an injunction challenging the President’s authority to issue EO 14042, the contractor vaccine mandate. National trade organization Associated Builders and Contractors, Inc. (ABC) then joined the suit. In deciding to enjoin the vaccine mandate across the entire country, the Court found that, given ABC’s nationwide membership and the number of federal contractors and subcontractors with which they would be involved, limiting the injunction to only those states participating in the lawsuit would be "unwieldy and would only cause more confusion."
The Procurement Act gives the executive branch wide
latitude to promote "economy and efficiency" in procurement. The Administration expressly relied on such authority to issue EO 14042, claiming that contracting with sources that provide adequate COVID-19 safeguards for their workforce promotes such economy and efficiency. Nevertheless, the federal court in Georgia concluded that the Procurement Act lacks explicit language authorizing the contractor vaccine mandate because of the mandate’s "vast economic and political significance." The court also found that the vaccine mandate would impose an "extreme economic burden" on contractors, and that it impermissibly "operates as a regulation of public health."
To be clear, this injunction is not a final order on the merits of the case. Briefing and argument in the case will continue. The injunction could be overturned in a subsequent order or upon appeal to the Eleventh Circuit Court
It is also important to note that employers need not wait for this case to be resolved to establish and enforce policies concerning the vaccination of their employees. Nothing in this ruling prohibits employers in most states (including Ohio) from requiring their workforces to be fully vaccinated or to implement the "vax or test" option consistent with the (also currently enjoined) recent OSHA rule.
Our Labor and Employment practice group attorneys remain available to assist with any issues that may arise concerning COVID-19, vaccination, or other related issues as these and other cases challenging the various federal vaccine mandates continue to work their way through the courts.
For additional information about federal mandates regarding COVID vaccination of
employees, please see our prior First Alerts on these matters: