On Tuesday, December 7, 2021, a federal district court in Georgia halted enforcement of the Biden Administration’s federal contractor vaccine mandate in every state. As part of his plan to combat the COVID-19 pandemic, President Biden signed Executive Order 14042 on September 9, 2021. The Executive Order requires federal contractors and subcontractors to ensure that their employees working on or in connection with federal contracts are fully vaccinated against COVID-19 by January 18, 2022 (“Federal Contractor Vaccine Mandate”). Multiple lawsuits have been filed in several states challenging the constitutionality of the Federal Contractor Vaccine Mandate. The federal district court in Georgia found the administration overstepped its constitutional authority to issue the Mandate.
Background
On October 29, 2021, seven states (Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia), the governors of several of those states, and several state agencies (the “States”), collectively filed a lawsuit challenging the Federal Contractor Vaccine Mandate. The Associated Builders and Contractors, Inc. intervened. The States filed a motion for preliminary injunction in the Southern District of Georgia seeking to prevent the Mandate from being enforced. The district court held a hearing on Friday, December 3, 2021 to determine whether to grant or deny the States’ injunction request.
During the hearing, the court acknowledged the vaccine’s usefulness in combating the COVID-19 virus but clarified that the real issue was not about the effectiveness of the vaccine itself. Rather, the court found the narrow issue to be whether the President can use his congressionally delegated authority to manage the federal procurement of goods and services to mandate covered contractor employees be vaccinated. The court found that the President is not likely permitted to do so.
The Federal Property and Administrative Services Act, 40 U.S.C. § 101 et seq. (the “Procurement Act”) grants the President broad congressional power to enact a host of executive orders to manage the procurement of goods and services. Despite Congress’ broad delegation of power under the Procurement Act, the court found that it is not likely intended to be the basis for the promulgation of a public health measure, such as mandatory vaccination. As a result, the States’ motion for preliminary injunction was granted. The court issued a nationwide injunction on the Federal Contractor Vaccine Mandate halting enforcement of the Mandate in every state. The court found limiting the injunction to only the States would be “unwieldy” and “cause more confusion.”
Prior to the Georgia district court’s ruling, at least five other states had filed complaints challenging the Federal Contractor Vaccine Mandate. On September 14, 2021, the state of Arizona filed a lawsuit challenging the Federal Contractor Vaccine Mandate; however, the District Court of Arizona denied Arizona’s request for an injunction. On October 28, 2021, Florida filed a complaint in the Middle District of Florida seeking a preliminary injunction against the Mandate. The hearing was set for December 7, 2021, and the court has not yet ruled on the matter. On November 30, a federal district court in Kentucky granted a preliminary injunction against the Federal Contractor Vaccine Mandate, halting the enforcement of the Mandate in only three states, Kentucky, Ohio, and Tennessee. Now that the federal district court in Georgia has issued a nationwide preliminary injunction against the Federal Contractor Vaccine Mandate, enforcement of the Mandate has been blocked in all fifty states.
Employers’ Bottom Line
It is important for federal contractors and subcontractors to keep in mind that a preliminary injunction is not a dispositive finding on the merits of a case. As such, the parties likely will begin briefing and arguments to determine whether the district court will issue an order permanently enjoining the federal government’s enforcement of the Mandate. Whatever the next steps, it is clear the Biden Administration intends to “vigorously defend” their Mandate in court. The Administration argues the reason they proposed the vaccine requirements is they “know they work, and [they] are confident in [their] ability legally to make these happen across the country.”
For now, employers should be on the alert for guidance from federal agencies and contracting officers concerning the halted implementation and enforcement of the Federal Contractor Vaccine Mandate and consult with counsel on appropriate steps to take concerning their vaccination policies. In states where state law does not limit or ban vaccination mandates, employers may still choose to adopt voluntary vaccine mandate policies. In those states with laws limiting or banning such policies, employers, for now, are alleviated of the difficult conflict that previously existed between federal and state law. It is noteworthy that the injunction does not appear to apply to other aspects of the COVID-19 requirements issued by the Safer Federal Workforce Task Force, such as those related to masking and social distancing, or any vaccination-related requirements federal workplaces may have in place for those individuals entering those worksites.
We will continue to provide updates on this developing issue. If you have any questions, please contact the authors of this Alert, Nancy Holt, partner in our D.C. office at nholt@fordharrison.com, Jill Harrison, partner in our Atlanta office at jharrison@fordharrison.com, both of whom are members of FordHarrison’s Affirmative Action/OFCCP and Government Contractors practice groups, or Erica Johnson, at ejohnson@fordharrison.com, associate in our Memphis office and member of FordHarrison’s Affirmative Action/OFCCP practice group. Of course, you can also contact the FordHarrison attorney with whom you usually work.