Coronavirus Roundup: An Update on the Contractor Vaccine Mandate

Remember the vaccine mandate for federal contractors that President Biden issued last September? 

Well, several legal challenges are ongoing: there have been six injunctions issued, one of which was national, and the federal government has appealed them all, as outlined in a post from the law firm Bradley Arant Boult Cummings LLP last week. 

Ambika Biggs, a partner at the law firm Hirschler who specializes in government contracting, told Government Executive earlier this week the matter is likely to be appealed to the Supreme Court, especially if there is a circuit split on decisions.

“Last fall and winter there was a lot of confusion as to what was going on,” due to the status of the various lawsuits, she said. “That’s not happening now I think just because there is a nationwide injunction and there hasn’t been any sort of ruling…In some sense they’re left in limbo, but it's not as bad as it was last fall.” If and when the mandate goes back into effect, there will then be a period of “scrambling.”

These cases really “come down to the interpretation of the Federal Property and Administrative Services Act, which is just called the Procurement Act” and “whether President Biden had authority under that act to issue the executive order that put the federal contractor mandate in place,” said Biggs. The main argument she’s seen in the pleadings is that “there wasn’t a close enough nexus between wanting an economical and efficient system for procurement and the actual vaccine mandate,” and the mandate was more about public health, which is usually under states’ jurisdiction. 

Meanwhile, the vaccine mandate for federal employees was delayed again in late June because an appeals court agreed to rehear the case in front of a full panel of judges. Here are some of the other recent headlines you might have missed. 

On Monday, the Health and Human Services Department awarded nearly $90 million in American Rescue Plan funds to nearly 1,400 community health centers nationwide to advance health equity through better data. “Funding supports a data modernization effort aimed at better identifying and responding to the specific needs of patients and communities through improved data quality; advancing COVID-19 response, mitigation and recovery efforts; and helping prepare for future public health emergencies,” said an announcement from HHS. “[HHS’s Health Resources and Services Administration] initiative is designed to enable health centers to have better data on both patient health status and social determinants of health.”

The Centers for Disease Control and Prevention issued eased COVID-19 guidance on Thursday acknowledging the country is in a “stronger place” due to vaccines, boosters and treatments as well as more of an understanding on how to protect individuals from exposure. “This guidance acknowledges that the pandemic is not over, but also helps us move to a point where COVID-19 no longer severely disrupts our daily lives,” said Greta Massetti, branch chief of the CDC’s Field Epidemiology and Prevention Branch, in a statement.

An additional 135 million vaccine doses manufactured at the troubled Emergent BioSolutions facility in Baltimore that were produced after the company said it addressed quality issues were rendered unusable, top House Democrats who have been investigating the matter said on Thursday. “The findings confirm that the Biden administration was right to cancel the Trump administration’s coronavirus vaccine manufacturing contract with Emergent BioSolutions last year,” said Rep. James Clyburn, D-S.C., chairman of the House Select Subcommittee on the Coronavirus Crisis, in a statement. “It is deeply disappointing that Emergent, after collecting millions in taxpayer dollars and having many months to fix the serious manufacturing problems plaguing their Baltimore facility, has yet to competently perform the essential task they committed to perform.” This brings the total of wasted vaccines to 525 million doses, the lawmakers claimed.

Emergent told CBS Baltimore that the company is committed to be a “trusted partner” of the U.S. government and has been forthright about its challenges. “We will continue to use our more than 20 years of public health preparedness experience to help inform an all-of-the-above approach to help prepare for the public health challenges to come,” said the company in a statement. It also questioned the dose numbers stating, “it is very difficult to estimate dose equivalent" for batches of the medicine yet to leave the facility and be made into vaccines.

Help us understand the situation better. Are you a federal employee, contractor or military member with information, concerns, etc. about how your agency is handling the coronavirus? Email us at newstips@govexec.com.