RELATED: End of an Era: White House Ends Many Federal COVID-19 Vaccine Requirements (May 3, 2023)
Last year, the U.S. District Court for the Southern District of Georgia issued a nationwide injunction against President Biden’s federal contractor COVID-19 vaccine mandate in Executive Order 14042. On Aug. 26, 2022, the U.S. Court of Appeals for the Eleventh Circuit issued a decision narrowing the scope of that injunction, holding it applies in only seven states. The Eleventh Circuit agreed with the district court that President Biden likely exceeded his authority under the Procurement Act when he directed executive agencies to enforce the COVID-19 vaccine mandate. While the Eleventh Circuit agreed the plaintiffs were entitled to a preliminary injunction, the extension of the injunction beyond the plaintiffs to all contractors and subcontractors nationwide was overbroad.
The injunction at issue in this case now only prohibits enforcement of the vaccine mandate in federal contracts with seven plaintiff states — Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia — as well as federal contracts and subcontracts with members of the Associated Builders and Contractors, a national construction trade group that had intervened as a plaintiff.
By eliminating the nationwide injunction, the opinion brings related litigation across the country back into focus. Contractors again find themselves closely following legal developments as they navigate a patchwork of enforcement statuses across the country. As a result of this opinion and injunctions issued in other cases, the Executive Order remains unenforceable in all covered federal contracts in those states, and in other states only as against those states and their agencies as parties to federal contracts:
- Enforcement is enjoined in covered federal contracts with Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia as parties. Georgia v. Biden, No. 21-14269 (11th Cir. Aug. 26, 2022).
- Enforcement is enjoined nationwide in covered federal contracts with members of the Associated Builders and Contractors. Georgia v. Biden, No. 21-14269 (11th Cir. Aug. 26, 2022).
- Enforcement is enjoined in covered federal contracts with Indiana, Louisiana, and Mississippi as parties. Louisiana v. Biden, No. 22-30019 (5th Cir. Dec. 19, 2022).
- Enforcement is enjoined in all covered federal contracts in Florida. An appeal is pending in the U.S. Court of Appeals for the Eleventh Circuit. Florida v. Nelson, 576 F. Supp. 3d 1017 (M.D. Fla. 2021).
- Enforcement was enjoined in all covered federal contracts in Arizona (which was effective in any contract that either involved a party domiciled or headquartered in Arizona or was performed principally in Arizona). The U.S. Court of Appeals for the Ninth Circuit dissolved the injunction, which would permit the vaccine mandate to proceed in that state if the federal government reinstates the mandate. Mayes v. Biden, No. 22-15518 (10th Cir. Apr. 19, 2023).
- Enforcement was originally enjoined in all covered federal contracts in Kentucky, Ohio, and Tennessee. Kentucky v. Biden, 571 F. Supp. 3d 715 (E.D. Ky. 2021). On appeal, the U.S. Court of Appeals for the Sixth Circuit affirmed the rationale for the injunction, but narrowed it to cover only the states as contract parties rather than all private contractors in the states. Kentucky v. Biden, No. 21-6147 (6th Cir. Jan. 12, 2023).
- Enforcement is enjoined in all covered federal contracts in Alaska, Arkansas, Iowa, Montana, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. An appeal pending in the U.S. Court of Appeals for the Eighth Circuit. Missouri v. Biden, 567 F. Supp. 3d 622 (E.D. Miss. 2021).
However, it is worth noting that the federal government has not yet updated the Safer Federal Workforce Task Force’s guidance for federal contractors, which currently states that “depending on the course of ongoing litigation, the Federal Government will take no action to implement or enforce Executive Order 14042.” Contractors should continue to monitor the Safer Federal Workforce website for updates and may consider taking steps to ensure future compliance.
While the Eleventh Circuit’s opinion dismantled the nationwide scope of the injunction as it pertained to contracts, it left in place a nationwide prohibition on requiring COVID-19 vaccination as part of solicitation language. As a result, the federal government may not consider whether a bidder is subject to the COVID-19 vaccine mandate when deciding who should receive a contract, so long as any plaintiff in this case belongs to the pool of bidders.
For questions about compliance with the federal contractor vaccine mandate or ongoing litigation challenging it and other federal COVID-19 employee requirements, please contact the authors of this alert, your McGuireWoods contact, or a member of the firm’s affirmative action, federal contracting, labor and employment, or COVID-19 response teams.