The U.S. Court of Appeals for the Eleventh Circuit has narrowed a district court ruling that enjoined the vaccine mandate for federal contractors on a nationwide basis. On Friday, August 26, 2022, the appellate court ruled in a 2-1 decision that President Biden likely exceeded his authority in issuing Executive Order 14042, which requires federal agencies to include a clause in federal contracts that mandates Covid-19 vaccination for employees of federal contractors and subcontractors.
In October 2021, Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia brought a lawsuit challenging the federal contractor vaccine mandate. Associated Builders and Contractors, a construction industry trade organization, intervened as a plaintiff in the lawsuit, which was filed in the U.S. district court for the Southern District of Georgia. On December 7, 2021, the district court issued a preliminary injunction that prohibited the government from enforcing the vaccine mandate in all contracts in any U.S. state or territory. The Government appealed.
On August 26, the Eleventh Circuit held that the Procurement Act – also known as the Federal Property and Administrative Services Act – does not authorize the President to require employees of federal contractors and subcontractors to be vaccinated. However, all three judges held that the district court’s injunction was too broad and the relief should apply only to the plaintiffs in the case. Therefore, the court narrowed the injunction to prohibit the Government from enforcing the vaccine mandate only in contracts with the seven plaintiff states and in contracts with members of Associated Builders and Contractors, and to prohibit the Government from including the vaccine mandate in solicitations in which those entities are bidders. The Government is free to enforce the mandate in new and existing contracts with nonparties and to consider compliance with the mandate when awarding a contract if none of the plaintiffs participate in the procurement.
One judge dissented from the ruling that the plaintiffs are likely to succeed on the merits of the case, finding that the language of the Procurement Act authorized President Biden to issue the executive order.
After the Georgia district court issued the nationwide injunction in December, the Government announced that it would not take any action to enforce the vaccine mandate in any state that is subject to a court order prohibiting the application of the Executive Order. Therefore, while the ruling enables the Government to enforce the vaccine mandate against nonparties to the Georgia litigation, the Government will not enforce the mandate in other jurisdictions where injunctions have been issued. The status of other lawsuits regarding the federal contractor vaccine mandate is listed below:
- Eastern District of Missouri: The federal district court issued a preliminary injunction barring the enforcement of the vaccine mandate in Alaska, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. An appeal is pending in the U.S. Court of Appeals for the Eighth Circuit.
- Western District of Kentucky: The federal district court enjoined the enforcement of the vaccine mandate for contractors and subcontractors in Kentucky, Ohio and Tennessee. An appeal is pending in the U.S. Court of Appeals for the Sixth Circuit.
- Middle District of Florida: The district court enjoined the enforcement of the vaccine mandate against all covered contracts in Florida. An appeal was filed and held in abeyance pending the resolution of 11th Circuit case.
- District Court of Arizona: The U.S. district court permanently enjoined the vaccine mandate for companies domiciled in Arizona or contracts principally performed in the state. An appeal is pending in the 9th Circuit.
A federal district court in Louisiana also granted a preliminary injunction on the vaccine mandate, but only for contracts between the federal government and Louisiana, Mississippi and Indiana, not for contractors within the state. An appeal is pending in the U.S. Court of Appeals for the Fifth Circuit.
A spokesperson for the Office of Management and Budget (OMB) indicated to Government Executive on August 29 that the Justice Department is reviewing the decision and federal agencies should not take any steps to enforce the Executive Order at this time. However, as of August 30, the Safer Federal Workforce Task Force, which provides guidance to federal agencies on Covid-19 workplace requirements, has not updated its website in light of the Eleventh Circuit’s ruling and the OMB has not issued written guidance. Therefore, the most prudent approach is for contractors that are not in states subject to an injunction to make arrangements to comply with the federal contractor vaccine mandate. The mandate requires companies who have contracts that include a clause requiring compliance with guidance issued by the Safer Federal Workforce Task Force – FAR 52.223-99, Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors – ensure all “covered contractor employees” are fully vaccinated by the first day of the period of performance on a newly awarded covered contract, and by the first day of the period of performance on an option, extension or renewed contract when the clause has been incorporated into the covered contract. Companies must assess whether their contracts contain the FAR clause, and if so, whether any of the injunctions apply. We anticipate the Safer Federal Workforce Task Force or OMB will provide formal guidance in light of the Eleventh Circuit’s ruling in the coming days.
Myrna H. Rooks