Seyfarth Synopsis: On December 7, 2021, United States District Judge for the Southern District of Georgia R. Stan Baker enjoined the government “during the pendency of this action or until further order of this Court, from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.”

We previously published a legal update regarding the U.S. District Court for the Eastern District of Kentucky’s November 30, 2021 preliminary injunction of the federal contractor COVID-19 vaccine mandate in three states.

Now the Southern District of Georgia has similarly enjoined the federal contractor mandate, but this time across the country. In deciding to grant plaintiffs’ motion for preliminary injunction, Judge Baker cited “the extreme economic burden” that they “have suffered and will continue to suffer in endeavoring to comply with EO 14042.” The Judge indicated that plaintiffs were likely to prove that:

Congress . . . did not clearly authorize the President to issue the kind of mandate contained in EO 14042, as EO 14042 goes far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead, in application, works as a regulation of public health, which is not clearly authorized under the Procurement Act.

Nor, the Court opined, does EO 14042 “have a sufficient nexus to the purposes of the Procurement Act” to fall within the President’s designated authority. Responding to “the unique facts before it,” the Court chose to apply the injunction nationally because “limiting the relief to only those before the Court would prove unwieldy and would only cause more confusion.”

The current compliance deadline for covered contractor employees to achieve full COVID-19 vaccination is January 18, 2022. As our federal contractor clients are aware, the government has expressed some deadline flexibility, particularly in suggesting employees who refuse vaccination should not be immediately terminated. In the face of this nationwide injunction, contractors may be able to pause compliance efforts, though they should remain cognizant of ramp up time to achieve compliance if the injunction on the mandate is lifted.

Of course, the injunction prevents the government from enforcing its contractor vaccine mandate, but it does not prevent employers from continuing to implement vaccination policies, without the government’s authority and enforcement. An employer can rollout or continue its vaccination policy for uniformity’s sake and administrative convenience (among other reasons) if it so chooses, unless otherwise precluded by state law. Because the injunction enjoins “enforcement” of the contractor vaccine mandate, it is questionable whether the government can continue to add the FAR/DFARS vaccine clause (even if dormant) to new solicitations or through contract modifications while the injunction remains effective.

The Biden administration will continue to appeal these court decisions to protect the contractor mandate. The government filed a motion in the Kentucky case on Friday, December 3, 2021 seeking “an emergency stay pending appeal of the Court’s November 30, 2021 Opinion and Order,” and “an immediate administrative stay of that order while the Court considers the Defendants’ stay motion, and to allow the Sixth Circuit time to consider an emergency stay motion if this Court does not issue one.” The Court entered an order allowing responses to the government’s motion by December 8, and any government reply by December 10. We should expect an appeal from the government concerning the Georgia District Court’s nationwide injunction as well.