On December 7, 2021, a federal judge issued a nationwide injunction that, for the time being, halts the COVID-19 vaccine mandate for federal contractors. The injunction is a preliminary injunction, the purpose of which is to preserve the status quo until a final judgment can be reached. This means the injunction will stay in place until the court reaches a final ruling on the merits of the case.
To issue the injunction, the court had to find that the parties challenging the mandate were likely to succeed. In that regard, the court found that President Biden likely exceeded his authority under the Federal Property and Administrative Services Act (the Act), which gives the president broad authority to promote economy and efficiency in federal contracting. However, the court cited a Supreme Court precedent that Congress is expected to “speak clearly” when delegating powers of “vast economic and political significance.” Given the significant economic impact of the mandate, as well as the fact that, practically speaking, it operates as a regulation of public health, the court questioned whether the Act contains the clear statement required to delegate that type of authority.
This injunction does not affect the OSHA mandate, which applies to private businesses with more than 100 employees. However, that mandate is also temporarily on hold pursuant to an order from the Fifth Circuit Court of Appeals.
Contractors should stay tuned in the coming days for guidance from the Biden administration and specific agencies in response to the injunction, particularly as it relates to existing contracts and solicitations that require compliance with the mandate.