On December 7, 2021, a federal court in Georgia issued a nationwide injunction prohibiting the enforcement of Executive Order 14042 (EO 14042), the federal contractor vaccine mandate. EO 14042, which President Biden signed on September 9, 2021, requires new government contracts, and options and extensions of existing contracts, to include a clause requiring federal contractors, subcontractors, and others performing work on federal contracts to be fully vaccinated against COVID-19 by January 18, 2022.
In its opinion in Georgia v. Biden, the Georgia court stated that the case was not about whether vaccines are effective, but rather whether “the President exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act” when he issued EO 14042. The court held that the plaintiffs – which included the trade organization Associated Builders and Contractors, Inc. (“ABC”) – were likely to succeed on their claim that the President had exceeded his authority because the Federal Property and Administrative Services Act grants the President authority over administrative and management of procurement and contracting, but EO 14042 operated as a public health regulation instead.
The Georgia decision follows a November 30 decision by another federal court in Kentucky to issue an injunction prohibiting the Executive Order’s enforcement in Kentucky, Ohio, and Tennessee. Yesterday’s decision is broader in scope. The Georgia court issued a nationwide preliminary injunction because ABC has members all over the country that are involved in federal contracts. The preliminary injunction will remain in effect throughout the pendency of the case or further order by the court.
This stay of EO 14042, in combination with yet another federal court’s November 6 nationwide enjoinment of OSHA’s Emergency Temporary Standard that imposed a vaccine or testing mandate on employers with 100 or more employees and two other district courts’ enjoinment last week of the Centers for Medicare and Medicaid Services rule requiring healthcare workers be vaccinated, has for the time being effectively thwarted the Biden Administration’s efforts to impose COVID vaccine mandates for many employers. The courts’ reasoning in the cases that have enjoined the vaccine mandates casts serious doubt on any future implementation of these regulations, but it remains to be seen how reviewing courts will resolve these cases. So what should employers do in the interim?
Many employers began implementing policies and procedures to ensure their workforces met the mandate requirements before their enforcement was halted. They should retain these materials and documentation that they created or collected while complying with the requirements in case the mandates survive legal challenge.
Additionally, while the above federal requirements are not in effect at the moment, a significant number of states have implemented safety regulations and requirements that will still apply to your workplace. As such, we recommend staying abreast of any requirements and guidance that may be implemented from your state’s safety and health organization.
Employers also will want to continue following CDC guidance in the workplace. This will keep your workplace practices as effective and up-to date as possible, which is particularly important with the impending Omicron variant. As such, we recommend following CDC guidelines to the extent possible, and to the extent the guidance complies with your requirements under other state and local law. Lastly, private employers should keep in mind that, if necessary, they can likely still impose a vaccine mandate on their own, as long as they provide accommodations for employees with medical conditions or sincerely held religious beliefs that prevent them from receiving the vaccine.
Should you have any questions, feel free to reach out to any members of the Employment Law and Government Contracts Teams.