The federal contractor COVID-19 vaccine mandate set forth in Executive Order 14042 is at the forefront again. On Friday, Aug. 26, 2022, a divided Eleventh Circuit Court of Appeals panel partially overturned the nationwide injunction put in place by a Georgia court late last year. The same appeals court had previously declined to stop the injunction pending appeal.
In Georgia, et al. v. President of the United States, et al., Case No. 21-14269, the three judge panel held 2-1 that the Southern District of Georgia's decision to award the preliminary injunction was proper, reasoning that the plaintiffs were likely to win on the merits. However, while the majority agreed that the injunction was proper, they took issue with the nationwide scope of the injunction. The court held that the broad scope of the injunction was a "drastic form of relief," which should be rarely exercised. The court then narrowed the scope of the injunction to only the plaintiffs: the states of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia, and the members of the trade group Associated Builders and Contractors (ABC).
Writing separately, Judge R. Lanier Anderson disagreed that the plaintiffs had shown they were likely to win on the merits. As such, he believed that the district court acted outside its authority in granting any injunction. But, Judge Anderson also believed the injunction in place was too broad, so he joined the majority decision in narrowing its scope to just the plaintiffs.
What does this mean for contractors? If you are doing business in one of the seven plaintiff states, or are a member of ABC, the injunction is still in place and you cannot be required to comply with the vaccine mandate. Note also that a similar injunction is still in place for the states of Kentucky, Ohio, and Tennessee. Enforcement of the mandate in other states is now up in the air.
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