On December 7, 2021, a federal judge in Georgia issued a nationwide injunction blocking the implementation of the federal contractor vaccine mandate. The halting of Executive Order 14042, which requires all contractors and subcontractors performing work on certain federal contracts to ensure that their employees are fully vaccinated against COVID-19, presents yet another twist in the legal fights over the vaccine mandate.
While previous injunctions had been issued stopping the OSHA vaccine mandate for large employers, this is the first successful challenge to the federal contractor vaccine mandate. The federal judge in Georgia reasoned that the federal contractor mandate went “beyond the administration and management of procurement and contracting; in its practical application it operates as a regulation of public health.” Without clear authorization from Congress, the judge ruled that the President lacks authority under the Federal Procurement Act (40 U.S.C. § 101 et seq.) to require that federal contractors implement a vaccine mandate.
It is virtually guaranteed that the Department of Justice will appeal this decision, and it remains to be seen whether the 11th Circuit Court of Appeals will uphold or lift the injunction. In the meantime, the federal contractor vaccine mandate was scheduled to go in effect on January 18, 2022, which in practice required that employees would need to receive the last dose of a Covid-19 vaccine by January 4, 2022. In the midst of this legal uncertainty and impending deadlines, what are federal contractors to do?
The safe answer is that contractors should continue to prepare for implementing the vaccine mandate. In the event that a Circuit Court of Appeals or the Supreme Court lifts the nationwide stay now in effect, then contractors will have already laid the groundwork necessary to implement the mandate while it is being decided by the courts. Contractors should still advise their employees of the effective dates of the mandate and collect the vaccination cards of those employees who have already been vaccinated. However, instead of immediately proceeding to terminate or discipline non-compliant employees, contractors could elect to refrain from disciplinary action until the legal picture becomes more clear in the coming weeks.