A federal judge in Georgia issued a preliminary injunction prohibiting the federal government from enforcing its COVID-19 vaccine mandate for federal contractors and subcontractors nationwide. This decision follows a November 30, 2021 order from a federal judge in Kentucky granting a preliminary injunction barring enforcement of the contractor mandate in Ohio, Kentucky, and Tennessee. Challenges to the Executive Order are still pending in federal courts in Louisiana, Texas, Missouri, Arizona, and Florida. Decisions in those cases are expected in the coming weeks.
US President Joseph Biden issued Executive Order 14042 (Order) on September 9, 2021. That Order and subsequent guidance from the Safer Federal Workforce Task Force stated that federal contractor and subcontractor employees performing work on or in connection with covered federal contracts or at covered contractor worksites must be fully vaccinated against COVID-19 by January 18, 2021, unless they were eligible for exemptions based on a medical condition or sincerely held religious beliefs.
The states of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia, as well as various entities and agencies within those states, filed a suit challenging the Order and accompanying guidance in federal court in Georgia on October 29, 2021. The parties alleged that the Order exceeded President Biden’s authority to impose conditions on federal contracts under the Federal Property and Administrative Services Act (the Procurement Act) and requested a preliminary injunction on enforcement pending a final decision on the merits. Challenges seeking similar relief were filed in federal courts in Arizona, Florida, Kentucky, Louisiana, Missouri, and Texas by other state governments and entities around the same time.
The federal court’s ruling in the Georgia case found that a preliminary injunction was justified, as the plaintiffs were substantially likely to succeed on the merits of their challenge and would likely suffer irreparable harm if they were forced to expend non-recoverable time and costs to implement a system to comply with the Order’s burdensome requirements. The court’s order explained that Congress enacted the Procurement Act to enhance economy and efficiency in federal contracting and granted the president authority to carry out those goals. The federal government’s attorneys argued that the Order was designed to further those goals by reducing absenteeism and limiting the impact of COVID-19 infections on federal contracting and supply. In the court’s view, however, the Order exceeded administration and management of an efficient federal contracting program and instead operated to regulate public health. As a result, the court believed the Order likely exceeded the President’s authority under the Procurement Act and was unlawful. In reaching this conclusion, the court favorably cited a recent decision by a federal judge in Kentucky, which similarly enjoined enforcement of the Order in Ohio, Kentucky, and Tennessee. The court in Georgia found that a nationwide injunction was warranted in this case given that one of the plaintiffs had members across the country and that the scope of the Order applied to subcontractors that were likely spread nationwide.
The court’s order applies nationwide and bars the federal government from enforcing vaccine mandate clauses in covered contracts and subcontracts during the pendency of the case. The federal government is expected to appeal the decision to the US Court of Appeals for the Eleventh Circuit.
All three of President Biden’s major COVID-19 vaccine mandate initiatives—the federal contractor Executive Order, the Center for Medicare and Medicaid Services Interim Final Rule on COVID-19 vaccination at healthcare facilities, and the Occupational Health and Safety Administration’s Emergency Temporary Standard on COVID-19 vaccination and testing—are now subject to nationwide stays. While the federal government will appeal these rulings, it is likely that employers will not receive definitive answers on the vaccine mandates’ legality until the Supreme Court rules on the matters. The lack of an effective nationwide rule that may preempt state and local law is notable given recent developments at the state level, including those described in a prior LawFlash, to expand vaccine mandate exemption categories or bar employer vaccine mandates altogether.
Employers who implemented mandatory COVID-19 vaccination policies specifically in response to Executive Order 14042 may consider reviewing those policies in light of this decision and the evolving patchwork quilt of state and local laws on these topics. It is important to note, however, that employers can still make vaccination a condition of employment even in the absence of the Order as long as their programs operate consistently with applicable federal, state, and local law and no adverse actions are taken that would contravene applicable law. The legal landscape in this area is shifting rapidly, however—for example, it is possible that the Eleventh Circuit will overrule the Georgia federal district court’s decision—and employers will want to discuss with counsel their policies and the impact of any case law developments as well as state or local laws on their exemption processes prior to taking any actions.
Sharing insights and resources that help our clients prepare for and address evolving issues is a hallmark of Morgan Lewis. To that end, we maintain a resource center with access to tools and perspectives on timely topics driven by current events such as the global public health crisis, economic uncertainty, and geopolitical dynamics. Find resources on how to cope with the globe’s ever-changing business, social, and political landscape at Navigating the NEXT. to stay up to date on developments as they unfold. Subscribe now if you would like to receive a digest of new updates to these resources.
Daniel A. Kadish
Daryl S. Landy
A. Klair Fitzpatrick
Emily Cuneo DeSmedt
Kaiser H. Chowdhry
Alana F. Genderson
Sharon Perley Masling