United States: Nationwide Freeze Issued Preventing Federal Government From Enforcing COVID-19 Vaccine Mandate For Federal Contractors

A nationwide injunction has been issued, effectively preventing the federal government from requiring certain federal contractors and their subcontractors to mandate COVID-19 vaccination for employees. A U.S. District Court judge based in Georgia issued the ruling in a case brought by seven states and a builders and contractors trade association who challenged whether the federal contractor mandate exceeded President Biden's authority under the Federal Property and Administrative Services Act. See Georgia v. Biden, No. 1:21-cv-163 (S.D. Ga. Dec. 7, 2021) (preliminary injunction ruling is found here). The ruling expanded the injunctive relief granted by another court several weeks earlier that applied only to a handful of states. See Kentucky v. Biden, 2021 WL 5587446 (E.D. Ky. Nov. 30, 2021).

In granting a nationwide injunction against the federal contractor vaccine mandate in Georgia v. Biden, the federal district court found that the plaintiffs and intervening parties, including a trade association, are “more likely than Defendants [i.e., President Biden] to succeed on the issue of whether there is a sufficiently close nexus between” the vaccine mandate and the purposes of the Procurement Act upon which the “President expressly relied for authority” when issuing the vaccination mandate for federal contractors and subcontractors. The court also found that the trade association had members all over the country with federal contracts who would suffer irreparable harm, and that it was “necessary, in order to truly afford injunctive relief to the parties before it, to issue an injunction with nationwide applicability.” As a result of this order, the vaccine mandate for federal contractors and subcontractors in all covered contracts cannot be enforced in any state. 

Employers monitoring these court challenges are likely aware that this is just the latest order enjoining federal COVID-19 vaccination mandates. The federal Occupational Safety and Health Administration's (OSHA) Emergency Temporary Standard (ETS) has also been halted pending further court rulings, as we explained in our previous updates here and here. The ETS implemented President Biden's “soft” vaccine mandate that allowed vaccines or testing for private employers with 100 or more employees. Similarly, after issuing an interim final rule requiring staff working in Medicare- or Medicaid-certified providers to have the shots necessary to be fully vaccinated against COVID-19 by January 4, 2022, and in light of the injunctions, the federal Center for Medicare & Medicaid Services has issued a memorandum stating, “while these preliminary injunctions are in effect, surveyors must not survey providers for compliance with the requirements of the Interim Final Rule. Health care facilities, of course, may voluntarily choose to comply with the Interim Final Rule.” Accordingly, with these court orders, President Biden's federal vaccine mandates cannot be enforced, if ever, unless and until they are upheld when they “percolate through the federal court system.” Georgia v. Biden (quoting Trump v. Hawaii,  138 S.Ct. 2392, 2424 (2018) (Thomas, J., concurring). 
 

What Should Employers Do Now?

It may take some time for the courts to resolve issues relating to the validity of President Biden's various COVID-19 vaccination mandates, so employers should continue to monitor these developments. At the same time, state and local government agencies have issued independent COVID-19 vaccination mandates that may still apply to certain locations and industries. Courts in many states have already rejected challenges to those mandates. In other states, legislatures have passed laws that prohibit COVID-19 vaccination requirements. Until the appellate courts address the validity of the federal COVID-19 vaccination mandates discussed above, employers with multi-state locations must review their compliance obligations on a state and local basis, depending on where their employees are working.

Regardless of the federal COVID-19 vaccine injunctions, employers must also continue to comply with all other applicable federal, state and local COVID-19 safety and health obligations, including laws requiring mask-wearing, reporting of positive COVID-19 tests among employee populations, and record-keeping requirements.

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