United States: To Mandate Vax Or Not, That Is The Question: Federal Contractor Vaccine Mandates Before Several Appellate Courts

Questions about COVID-19 vaccines are hard, particularly if you contract or want to contract with the federal government. The scenario is familiar: You run a business that has or seeks to contract with the federal government. You read about the Biden administration's Executive Order mandating that your employees be fully vaccinated for you to qualify for federal contract work. You read that the order is broad and applies to services, construction, leasehold interest, or concessions contracts performed in country and generally valued above $250,000. You know you have employees who are not vaccinated and resist vaccination. 

What do you do? As it sits today in many parts of the country, there is little definitive guidance besides "wait and see." The Eighth Circuit Court of Appeals is dealing with the question of vaccine mandates for federal contractors (to be clear, not federal employees themselves — that is a different question entirely) following a lower court's decision to enjoin the president's order after Missouri and several other states challenged it.

Background

The impact of the COVID-19 pandemic has been obvious along with the government's effort to push vaccinations. Under the Federal Property and Administrative Services Act of 1949 (Procurement Act), the president is authorized to "prescribe policies and directives " to provide "an economical and efficient system " for federal contracting. Previous case law has interpreted those provisions to give the president flexibility and significant authority in setting procurement policy for federal contractors. In September 2021, President Biden issued an Executive Order directing federal agencies to include a clause in federal contracts requiring any contractor employees to follow COVID-19 protocols, including vaccination requirements.

The states of Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming challenged the Executive Order, arguing that it exceeded the president's authority under the Procurement Act. The states filed a lawsuit in federal district court in Missouri and sought a preliminary injunction.   

The Missouri federal district court enjoined enforcement of the Executive Order , noting it would permit the president to impose "virtually any public health measure that would result in a healthier contractor workforce." The district court also noted that the president had not previously used the Procurement Act authority to require federal contractors to ensure their employees were vaccinated against a disease.

Now Before the Eighth Circuit

Not surprisingly, the federal government appealed the lower court's decision to enjoin the vaccine mandate, and the Eighth Circuit is now considering that appeal. The government recently submitted its brief to vacate the injunction of the vaccine mandate. The government argued that the president's Executive Order was proper under the Procurement Act and had the required nexus to economy and efficiency for federal procurement. The states will be submitting their response in the coming weeks.

The Eighth Circuit is far from alone in wrestling with this question. The Eleventh Circuit is a little further along in the process of evaluating the same issue following a Georgia federal district court's order enjoining enforcement of the vaccine mandate nationwide. The federal government appealed, and the Eleventh Circuit heard oral argument a few weeks ago. Comments from the presiding judges in the Eleventh Circuit were skeptical that the injunction should be reversed. The states involved in the Eleventh Circuit case are Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia. Likewise, the Fifth Circuit, (with the states of Indiana, Louisiana, and Mississippi as plaintiffs) and Ninth Circuit (Arizona) are considering this issue as well. 

The Road Ahead...

As of right now, the federal contractor vaccine mandate is up in the air with all the myriad injunctions under review. As the multiple circuits wade through this complex issue, if they arrive at different conclusions, it could be that the validity of the federal contractor vaccine mandate will go to the Supreme Court to solve the circuit split.  

As time goes on, the severity of the COVID-19 pandemic continues to decrease. It seems to follow that precautions the government once considered vital may not be viewed in the same light. That inescapable fact may well play into the ultimate decision for the federal contractor vaccine mandate. All federal contractors should stay tuned.     

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.