In September of 2021, President Biden issued Executive Order 14042 which required all employees of contractors and subcontractors performing work on federal contracts or contract-like instruments, be vaccinated by January 17, 2022. However, the US District Court for the Southern District of Georgia recently granted a preliminary injunction against the enforcement of the federal contractor vaccination requirement across the country.
Federal contractor vaccination mandate placed on hold across the nation
On December 7th, a Georgia judge granted a request for a preliminary injunction against the enforcement of President Biden’s federal contractor vaccination mandate nationwide.
The court stressed that “[t]his case is not about whether vaccines are effective. They are.” However, they went on to state that:
… the Court acknowledges the tragic toll that the COVID-19 pandemic has wrought throughout the nation and the globe. However, even in times of crisis this Court must preserve the rule of law and ensure that all branches of government act within the bounds of their constitutionally granted authorities. Indeed, the United States Supreme Court has recognized that, while the public indisputably “has a strong interest in combating the spread of [COVID-19],” that interest does not permit the government to “act unlawfully even in pursuit of desirable ends.”
The decision to grant the injunction was mainly based on two factors: the President’s authority and the economic burden imposed.
President Biden likely exceeded his authority under the Federal Property and Administrative Services Act.
President Biden issued Executive Order 14042, by relying on his authority under the Federal Property and Administrative Services Act; which is designed to promote “economy and efficiency” in the Federal procurement process. The President stated that the Order was meant to promote such economy and efficiency in procurement by “contracting with sources that provide adequate COVID-19 safeguards for their workforce.”
However, the court noted that the President’s authority under the Act (granted by Congress) was over “those large administrative and management issues” to promote efficiency and economy. And went on to state that:
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.
The economic burden imposed on government contractors
The court also took into account testimony regarding, in their words, the “incredibly time-consuming processes” government contractors have undertaken “to identify employees covered by the mandate and to implement software and technology to ensure that those employees have been fully vaccinated (or have requested and been granted an accommodation or exemption).”
The decision later noted that the mandate has already required, and continues to require, “extensive and costly administrative work by employers and will force at least some individuals to choose between getting medical treatment they do not want or losing their job (and facing limited job replacement options due to the mandate).”
Not the first, and certainly not the end of the story
This isn’t the first blow to employee vaccination requirements. Biden’s Executive Order was immediately met with some pushback by states and the construction industry. And not just the Federal contractor vaccination requirement, but other employee COVID-19-related requirements that have been issued.
For example:
- On November 6, a Fifth Circuit Court ordered OSHA to halt the enforcement of its Emergency Temporary Standard (ETS) requiring employers of 100+ employees to mandate vaccinations or weekly testing.
- On November 30 a US District Court in Kentucky similarly enjoined Biden’s Executive Order but only in Ohio, Tennessee, and Kentucky.
- Also on November 30, a Louisiana Federal Court issued a nationwide injunction of the Centers for Medicare & Medicaid Services (CMS) from enforcing its COVID-19 vaccination mandate for health care workers.
What contractors should do in the meantime
Due to this decision, federal contractors are currently not required to comply with the vaccination mandate. However, this decision is appealable; and the future of these regulations is still unclear.
Employers will need to make some tough decisions over the next few weeks and months. They can continue to implement vaccination policies, or they can choose to wait and see how this all turns out. Whichever path they choose, they will need to consider that the vaccination requirements may be reinstated. So at the very least, employers should have some sort of game plan to comply. And to make matters even more confusing, there may be some jurisdictional differences for those who operate in more than one state.
Employers, federal contractors, and subcontractors alike should all keep a close eye on any future developments.