Contractor vaccine mandate fails again – this time nationwide!

Contractors collectively breathe sigh of relief.  

A federal judge in Georgia issued today a nationwide preliminary injunction that prohibits the government from enforcing the vaccine mandate that applies to federal contractors. The court’s order covers all contractors and subcontractors in the United States and its territories, and will be in place until further notice.

This decision follows a similar preliminary injunction issued last week that blocked the federal contractor vaccine mandate in Kentucky, Ohio, and Tennessee. As a result of today’s ruling, all of the Biden Administration’s signature vaccine mandates that apply to private employers have been preliminarily enjoined nationwide. The only mandates still standing apply to employees of the federal government and members of the armed forces.

In today’s order, U.S. District Judge R. Stan Baker, a Trump appointee, found that the plaintiffs (various states, state agencies, and Associated Builders and Contractors) “will likely 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.” Although recognizing that the government has laudable goals in mandating the COVID-19 vaccine for contractor employees, Judge Baker noted that the significant public interest in stopping the spread of the virus “does not permit the government to ‘act unlawfully even in pursuit of desirable ends.’”

Judge Baker’s ruling means that the January 4 deadline for covered contractor employees to receive their second vaccination dose (or single dose if receiving the Johnson & Johnson vaccine) is no longer in place. Contractors should continue to watch for new developments, but for now, they can hit the “pause” button on compliance efforts.

On November 6, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit stayed the Emergency Temporary Standard issued by the Occupational Safety and Health Administration, which would have required most private sector employers of 100 or more employees to mandate vaccination or require weekly COVID testing. A week later, the same panel refused to lift the stay. The Fifth Circuit stay, and numerous other challenges to the OSHA standard, have now been transferred to the U.S. Court of Appeals for the Sixth Circuit for a final decision. Meanwhile, the first compliance deadline of December 6 under the OSHA ETS has come and gone.

Last week, a federal judge in Missouri issued a preliminary injunction against the Centers for Medicare & Medicaid Services vaccine mandate, which applied to certain health care employers who receive Medicare and Medicaid funds. The Missouri injunction applied to employers in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. The following day, a federal judge in Louisiana issued another preliminary injunction against the CMS rule that applied to the remainder of the 50 states.

Despite the Administration’s recent lost battles, the “vaccine mandate war” is not over. The same judges could ultimately uphold the mandates, or, if they don’t, their decisions could be reversed on appeal. We will continue to provide you with updates.

Our Affirmative Action Alert blog focuses on the latest news and topics affecting federal contractors and subcontractors and their compliance with affirmative action and other employment-related laws and regulations.  With breaking news, quick updates, and headlines on the Office of Federal Contract Compliance Programs and affirmative action issues, this blog is a great resource for in-house counsel, HR managers, and other compliance professionals.  Our blog is a companion to Constangy’s Affirmative Action newsletters, which address significant legislative, regulatory, and administrative proposals and changes.  Subscribe to both to stay current on these important topics!

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