On August 26, 2022, the Eleventh Circuit Court of Appeals issued its long-awaited decision in the federal government’s appeal of a lower court order striking down the Biden Administration’s COVID-19 vaccination mandate for federal contractors and subcontractors. Although the Eleventh Circuit agreed with the district court that the vaccination mandate exceeded the President’s authority to issue, the appellate court found that the district court’s nationwide injunction was too broad in scope and limited the scope of the injunction to apply only to the parties before the court. This means that the vaccine mandate could resume in many other states that are not covered by an injunction from another court.
A brief history may be helpful: On September 9, 2021, President Biden issued Executive Order 14042, directing federal agencies to include a COVID-19 vaccination mandate in new federal government contracts, renewals and extensions of existing contracts, and, where possible, existing contracts even in the absence of a renewal or extension. On September 24, 2021, the Safer Federal Workforce Task Force issued guidance implementing the Executive Order’s requirements. Several lawsuits were filed in federal district courts across the country challenging the vaccine mandate, leading to the issuance of numerous injunctions of varying scope. One of these injunctions was issued by the U.S. District Court for the Southern District of Georgia and barred the vaccine mandate in all federal contracts and solicitations nationwide.
In assessing the federal government’s appeal of the nationwide injunction, the Eleventh Circuit rejected the government’s argument that Congress had delegated the President authority to impose a vaccine mandate under the Federal Property and Administrative Services Act, also known as the Procurement Act. Instead, the court held that the Procurement Act only provided limited authority to address the government’s procurement process, not impose health-related measures of vast, national significance.
More significantly, however, the court found that the nationwide scope of the Georgia court’s injunction was overbroad and that the injunction should provide relief only to the parties in the lawsuit – i.e., the States of Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia, and the members of the Associated Builders and Contractors (“ABC”). As a result, the Georgia injunction is now limited to prohibiting the federal government from imposing the vaccine mandate requirement in new or existing contracts with those states or ABC members or considering the mandate in solicitations for which those states or an ABC member is a bidder. Several other injunctions remain in effect, but cover only contractors in the States of Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, Wyoming, Kentucky, Tennessee, Ohio, and Florida. The federal government can now enforce the vaccine mandate with respect to federal contractors and subcontractors outside of those states and ABC’s membership.
As of the morning of August 29, 2022, the Safer Federal Workforce Task Force has not yet updated its website to account for the Eleventh Circuit ruling. However, contractors outside of the states that remained covered by court injunctions must resume preparations to ensure that all “covered contractor employees,” as defined by the task force’s guidance, are vaccinated against COVID-19 or have a religious or medical exemption from vaccination.