07 December 2021

Federal Contractor Vaccine Mandate Halted Nationwide

Earlier today a federal district court in Georgia issued a preliminary injunction against the Biden administration’s COVID-19 vaccine mandate for covered federal contractors and subcontractors under Executive Order 14042.  Unlike the November 30, 2021 preliminary injunction issued by a federal district court in Kentucky, the injunction issued today applies nationwide.

The Georgia court found that the Biden administration exceeded its statutory authority by enacting a public health requirement “of vast economic and political significance” pursuant to the law governing federal procurement.  Although the federal procurement law grants presidents “particularly direct and broad-ranging authority over those larger administrative and management issues that involve the Government as a whole,” the court found that the law likely does not contain clear congressional authorization to regulate public health in a way that significantly impacts the economy.  In the words of the court, “the direct impact of EO 14042 goes beyond the administration and management of procurement and contracting; in its practical application . . . it operates as a regulation of public health” and will have a “major impact on the economy at large.”

If you are a prime contractor whose contract with the federal contract has already been modified to require employee vaccination (or you have a new contract containing the clause), your contracting agency is not allowed to enforce this contract clause so long as today’s court ruling remains in effect.  If you are a subcontractor whose contract has already been modified by your prime contractor, the enforceability of the vaccine contract clause will likely be up to the discretion of the prime, but the prime is now under no federal obligation to enforce the clause.  We suggest subcontractors reach out to their primes for guidance.

As a result of this injunction, all three of the private-sector vaccine mandates announced by the Biden administration in early September have been enjoined by courts.  Last week the mandate applicable to in-person healthcare workers employed by certain Medicare- and Medicaid-certified providers was halted nationwide, and OSHA’s vaccine and testing mandate for employers with at least 100 employees was enjoined by a federal appellate court November 6.

In conclusion, none of the three federal vaccine mandates are currently in effect, and all three will remain halted unless a federal court rules otherwise.  We will be sure to keep you updated of any relevant developments.  If you have any questions, please contact your Miller Johnson attorney or one of the authors.