James Folaron, a volunteer with the Red Cross, draws the Moderna vaccine into a syringe at Kadena Air Base, Japan in 2021. Airman 1st Class Yosselin Campos /Air Force
The Ban on the Contractor Vaccine Mandate Was Lifted Partially. That Could Cause Confusion.
“At this time, the nationwide injunction remains in effect, and thus agencies should continue not to take any steps to enforce Executive Order 14042,” said a spokesperson for the Office of Management and Budget.
A federal appeals court’s ruling on Friday that partially lifted the ban on the COVID-19 vaccine mandate for federal contractors could force them to “navigate a hodgepodge of court decisions,” but for now the Biden administration says the nationwide injunction is still in effect.
The 2-1 ruling came from the U.S. Court of Appeals for the 11th Circuit and is one of several ongoing legal challenges to the mandate that President Biden issued in a September 2021 executive order. The initial lawsuit in this matter was from several states and the Associated Builders and Contractors, and was filed in October 2021.
“The district court appropriately determined that the plaintiffs are entitled to a preliminary injunction against the enforcement of the contractor vaccine mandate,” said the majority ruling. “But the scope of that injunction—extending nationwide and without distinction to plaintiffs and nonparties alike—was overbroad.”
Therefore, in the ruling the court affirmed the decision to keep the ban on the mandate in place for the seven plaintiff states––Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia–– and the members of the Associated Builders and Contractors, but it vacated the preliminary nationwide injunction. “As a result, the federal government is no longer enjoined from enforcing the mandate in new and existing procurement contracts between the federal government and nonparties, or in the selection process following solicitations in which no plaintiff participates as a bidder.”
The Federal Property and Administrative Services Act (known as the Procurement Act) “is all about—creating an ‘economical and efficient system’ for federal contracting,” which is “worlds away from conferring general authority for every agency to insert a term in every solicitation and every contract establishing health standards for contractors’ employees,” the opinion continued. “The statute does not offer the breadth of authority that the federal government asserts.”
The executive order is still enjoined in Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Utah, West Virginia and Wyoming as a result of the Friday opinion and the injunctions in the other cases, members of the law firm McGuireWoods noted in a post.
A spokesperson for the Office of Management and Budget told Government Executive on Monday morning the Justice Department is currently reviewing the decision. “At this time, the nationwide injunction remains in effect, and thus agencies should continue not to take any steps to enforce Executive Order 14042.”
Stephanie Kostro, executive vice president for policy at the Professional Services Council, a trade association that represents over 400 companies that contract with the federal government, told Government Executive that because the injunction was not fully lifted, contracting officers are now going to have to go contract-by-contract to see if the injunction is still in place for that contract.
As the different court cases go on and the injunctions on the mandate get revoked or partially revoked, “it does create an overall sense of confusion about where we’re going,” she said. “That’s why I’m emphasizing we need something in writing that companies and contracting officers in the government can point to and say, ‘this is the authority that is most relevant to our contact at hand.’ ”
It is also important to get something in writing from the government in light of the guidance from the Safter Federal Workforce Task Force issued earlier this month that rolled back testing and vaccination requirements for entrance to federal facilities, said Kostro. “There is some confusion between, ‘Well if we no longer have to be vaccinated to enter a facility, will I be required to be vaccinated at all?’ ”
Additionally, she said “the COVID landscape right now is very different from what it looked like nine months ago, a year ago, 16 months ago, and even two years ago and so when you’re looking at the impact of this ruling you have to wonder is this underlying requirement still relevant?”
Ambika Biggs, a partner at the law firm Hirschler who specializes in government contracting, told Government Executive if the government were to start enforcing the executive order, “companies may have to navigate a hodgepodge of court decisions.” Also, the fact that this was a split decision “suggests that reasonable minds can differ and it’s possible other courts will reach a different outcome.”
Ben Brubeck, vice president of regulatory, labor and state affairs at the Associated Builders and Contractors, said the ruling was a “major victory” for his organization and members.
“ABC will continue to lead efforts to push back on the Biden administration’s executive overreach harming federal contractors with respect to COVID-19 vaccine mandates and other anti-competitive and costly policies targeting federal contractors,” said Brubeck.
According to the Centers for Disease Control and Prevention, 67.4% of the U.S. population is fully vaccinated against COVID-19 and 77.3% of individuals 18 and up are vaccinated. That only includes the primary vaccine series and is what the executive order calls for.