Regulatory Update: Government Contractor Vaccine Mandate Ends

Following a bit of confusion caused by a recent court decision, the government has decided to officially call to an end the COVID-19 vaccine mandate that it had imposed last year on federal contractors and subcontractors.

The Biden administration issued the order on Aug. 30 following a decision handed down four days earlier by the Eleventh Circuit U.S. Court of Appeals, which ended a nationwide injunction against implementation of the vaccine order, thus throwing the matter into a state of confusion regarding whether the dormant mandate would still be enforced.

The executive order requiring federal contractors make sure their employees were vaccinated was announced in September 2021 and was considered to be part of a broader campaign launched by the Biden administration to ensure that as many Americans as possible were injected with the anti-Coronavirus vaccine. Other orders also imposed the vaccine requirement on the military and governments workers.

By far the most controversial action was the Occupational Safety and Health Administration (OSHA) mandate that the administration tried to impose on most private employers, an action that generated enormous controversy and public resistance, and eventually was struck down by the Supreme Court as being unconstitutional.

Before the contractor mandate could go into effect last year, a federal district court in Georgia issued a nationwide injunction that blocked its implementation. Plaintiffs also sought and obtained injunctions from other courts throughout the country, although none applied nationally to the mandate. All of these injunctions were in place when the Supreme Court ruled against the OSHA mandate, and remained in effect, although because it had never been implemented in the first place, had since been largely forgotten.

The Aug. 26 appeals court decision came in response to an earlier appeal by the federal government seeking to have the circuit court injunction lifted. The Eleventh Circuit Appeals Court judges held that the injunction could be allowed to continue but was overly broad and could no longer be extended to cover the entire country, but would be allowed to apply to the geographic area that came under the jurisdiction of the district court.

According to Richard W. Arnholt, an attorney with the law firm of Bass Berry & Sims, the appeals court decision specifically limited the mandate by holding that:

• Federal agencies were enjoined from enforcing the mandate in contracts with any plaintiff state—Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia—and with any member of Associated Builders and Contractors (ABC), which also was a named plaintiff.

• In competitions where a plaintiff is among the bidders, federal agencies were enjoined from considering a bidder’s compliance with the mandate when deciding whether to award a contract to a plaintiff or a nonparty bidder.

Confusion Leads to Clarity

“The Eleventh Circuit held that as a constitutional matter, the role of the judiciary is to resolve cases and controversies,” Arnholt explained. “Therefore, the scope of injunctive relief should be limited to the extent necessary to protect the interests of the parties, nothing more. Because complete relief to the parties was possible with a limited injunction, the court held nationwide relief was unnecessary.”

In addition to the states listed in the Eleventh Circuit decision and the members of ABC, five other injunctions also remained in place around the country—some of which had been appealed—that also included several other plaintiffs, including states.

Writing immediately prior to the government’s announcement of the mandate’s suspension, Arnholt said, “Because the COVID-19 pandemic is at (or near) its end and the vaccines have proven far less effective than first hoped, the federal government may exercise discretion and withhold the imposition of the vaccine mandate until the legal questions regarding the President’s authority have been fully resolved.”

He turned out to be right. The federal government updated its Safer Federal Workforce Task Force guidance on the very day that Arnholt’s blog post was published, stating that the government would no longer attempt to enforce the 2021 executive order requiring vaccinations for federal contractor employees.

The new guidance also made changes to the government’s frequently-asked-questions (FAQ) publication on the matter to reflect the new policy, particularly in regard to federal contractors and symptom screening, along with other topics, points out attorney Emily M. Halliday of the Ogletree Deakins law firm.

For example, the FAQs clarify that agencies will no longer symptom screen individuals, including contractor employees working on-site at an agency workplace. Instead, it says that symptom screening can be self-conducted and does not need to be verified by agency personnel. As a result, Halliday says that contractors are no longer required to use the government-wide official Certification of Vaccination form.

These new FAQs are in line with updated COVID-19 Workplace Safety Protocols issued by the administration on Aug. 17, according to Halliday. She also suggests that contractors should keep up to date on future developments by periodically visiting the Safer Federal Workforce website.