On December 7, 2021, the United States District Court for the Southern District of Georgia stayed the federal contractor vaccine mandate issued by the White House via Executive Order 14042 on September 9, 2021. This Court Order, which applies nationwide, enjoins the federal government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.” Previously, on November 30, 2021, a federal court in Kentucky enjoined the government from enforcing the mandate in Tennessee, Ohio and Kentucky only. The Georgia Court expanded the reach of the order nationwide because one of the plaintiffs in the Georgia litigation, the Associated Builders and Contractors’ trade association, has members nationwide with contacts and subcontracts in every state. Therefore, the Court concluded that “limiting the relief to only those [contracts] before the Court would prove unwieldy and would only cause more confusion.”
In granting this request for preliminary injunction, the Georgia Court echoed the ruling in Kentucky which states that “this case is not about whether vaccines are effective. They are.” Rather, the Court grounded its ruling on a finding that the Plaintiffs were likely to succeed in their claim that the “President exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act when issuing Executive Order 14042 … since [Executive Order 14042] goes far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead, in application, works as a regulation of public health.”
This Court ruling is the latest in a series of litigation challenges to the three vaccine mandates issued by the federal government this fall. On November 6, 2021, a federal court stayed the Occupational Safety and Health Administration (“OSHA”) emergency temporary standard (“ETS”) mandate requiring vaccinations or weekly testing for all employees at companies with at least 100 employees. OSHA subsequently posted a notice on its website suspending activities related to the implementation and enforcement of the ETS pending future developments in the court actions. Then, on November 29 and 30, 2021, two separate federal courts issued injunctions that collectively block enforcement nationwide of the Centers for Medicare and Medicaid Services (“CMS”) interim final rule requiring healthcare worker vaccinations. CMS has joined with OSHA in suspending its mandate pending future developments in the court actions. Now this Georgia Court has stayed the enforcement of the federal contractor mandate.
Takeaway for Employers
All of these court decisions have been, or will be, appealed. With respect to the federal contractor mandate, employers should remain alert for additional guidance from the federal agencies and contracting officers concerning the enforcement of Executive Order 14042. Following the Kentucky Court’s decision, the government directed agencies to halt the application of the Executive Order 14042 mandate to solicitations and contracts that could be performed, in whole or in part, in the three affected states. If the government continues as it did with the OSHA and CMS mandates, and following the Kentucky Order, it will likely issue additional guidance for all agencies to cease efforts to insert vaccine mandate clauses into covered federal contracts or enforce clauses that have already been incorporated into federal contracts.
Nevertheless, there remains the potential that all of the above injunctions could be reversed and the mandates imposed with little time for employers to implement. With that in mind, employers may wish to continue their preparations for compliance so as to avoid being caught off guard. And, of course, all employers are able to voluntarily implement a vaccine mandate in their workplaces subject to applicable state law limitations and the right of employees to request an exemption from the mandate based upon a medical condition or disability and/or a sincerely held religious belief.