Another Blow Against the Contractor COVID-19 Vaccine Mandate.

As federal contractors may recall, President Biden issued an Executive Order that required their employees to be fully vaccinated against COVID-19 in accordance with guidance from the Safer Federal Workforce Task Force. This order was subject to legal challenge, including by the States of Louisiana, Mississippi and Indiana, and the U.S. Court of Appeals for the Fifth Circuit has now affirmed a preliminary injunction by a federal district court that stayed the implementation of the EO as to those States. The Fifth Circuit found that the EO exceeded the President’s authority by using “procurement regulations to reach through an employing contractor to force obligations on individual employees.” Thus, the plaintiff States demonstrated a strong likelihood of success on the merits of their claims, and the Fifth Circuit refused to lift the injunction.

At this time, the contractor mandate has never taken effect (although other COVID-19 precautions have). In addition to this case, another court had issued a nationwide injunction, which was subsequently narrowed by the Eleventh Circuit in August 2022 to apply only to the plaintiffs – the States of Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia, as well as members of the Associated Builders and Contractors (a trade association). Nonetheless, in October 2022, the Safer Federal Workforce Task Force issued guidance that the contractor mandate would not be enforced at this time, pending further guidance from the Task Force. We do not expect such forthcoming guidance to reinstate the vaccine mandate.