There are currently at least three federal vaccine mandates winding their way through the courts. Most are blocked by judicial order, but not all, and it seems like there is a headline every day saying that a different mandate is or is not effective.
This includes the government contractor mandate, which is currently under an injunction that prevents its enforcement nationwide, but could be coming back in a different form as early as later this month.
Just take this series of headlines: “Judge issues nationwide injunction against Biden’s vaccination mandate for federal contractors,” “Appeals court lets Biden administration enforce vaccine rules for large employers,” “Judge grants relief to Navy SEALs who refused coronavirus vaccine, sued Biden administration.”
It’s tempting to mentally translate these headlines into “Biden lost, vaccine mandate dead,” “Biden won, vaccine mandate alive,” “Just kidding, vaccine mandate dead.” But these articles are talking about three different mandates and three different court cases.
So let’s do a quick explainer on what’s out there, with the focus, of course, on what government contractors need to know. As we’ve told you before, the president signed an executive order on September 9, 2021, requiring contractors to ensure that covered personnel are fully vaccinated, first by December 8 then later extended to January 4. He also signed orders requiring employers with 100 or more employees to ensure they are fully vaccinated (or pass COVID-19 tests on a weekly basis) and requiring healthcare workers at facilities that participate in Medicare and Medicaid to be fully vaccinated.
These mandates soon became the basis of several legal challenges. Let’s focus on the contractor mandate. In November, a federal judge in Kentucky issued a preliminary injunction preventing the administration from enforcing the mandate in the states of Kentucky, Ohio, and Tennessee (plaintiffs in the case). That was quickly followed by a ruling from a court in Georgia halting enforcement of the mandate nationwide. Then in late December, a federal judge in Missouri granted a preliminary injunction relating to the states Alaska, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.
The administration appealed the Kentucky and Georgia rulings (not the Missouri as of yet). The Kentucky appeal went to the Court of Appeals for the Sixth Circuit while the Georgia appeal went to the Court of Appeals for the Eleventh Circuit. Just this week, the Sixth Circuit ruled to uphold the Kentucky judge’s ruling. But again, that ruling only applies to three states. The Georgia appeal is also looking like it will face an uphill battle. Last month the Eleventh Circuit refused to stay the injunction.
So, it’s done for, right? Not exactly. If you dig in to the filings in the Georgia case—which, don’t forget, is still going on–you’ll find that the administration is taking a new approach that could resurrect the mandate for many contractors. On December 21, the court held a telephonic hearing about the administration’s Emergency Motion for Stay Pending Appeal. During the hearing, the administration withdrew requests 1) that the court stay the injunction and 2) narrow the scope of the injunction to apply merely to contracts with the plaintiffs (Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia).
That left only one request, that the court clarify whether its order “bars private contractors from mutually agreeing to abide by the COVID-19 workplace safeguards.” In other words, the government is asking whether or not the injunction applies to bilateral modifications—changes proposed by the government and accepted by the contractor. It would not be surprising if many contractors have already agreed to such modifications.
See, contracting officers started sending these modifications out as soon as the FAR Council provided the clause for them to incorporate into agreements. That was back in early October. Based on that timeline, there was a two-month window before the injunctions came down when who knows how many contractors agreed to a bilateral modification to add the vaccine mandate into their contracts.
If the judge says that the injunction doesn’t apply to those bilateral modifications then they should be in full effect. Plus, the administration can pick up where it left off and seek to bilaterally modify further existing contracts and, let’s face it, the government brings a lot of negotiation heft to the table; so much so that some might say these are not bilateral at all.
It’s unclear what the judge will do. The court has ordered briefing on the matter. The states that challenged the mandate have to file their brief on January 7 (today). The administration gets to reply on the 14th. Thus, depending on what the decision is, the same judge who barred enforcement nationwide could bring it back in a big way. We won’t know until at least January 14, though chances are the decision will come some time after.
That’s the contractor mandate for you. It’s in limbo. One thing it is not, is going before the Supreme Court like the other mandates. The Occupational Safety and Health Administration 100-employee mandate and the healthcare worker mandate were both the subject of oral arguments this morning at the Supreme Court. There is some indication that those mandates have a better chance of survival, but then again six of the nine justices are conservative.The Supreme Court is expected to rule relatively quickly.
That means, even if the contractor mandate does disappear for good, contractors who have over 100 employees or are in healthcare may run headlong in to a different mandate.
If you have questions about the mandate, please contact us at 913-354-2630.
The Latest on the Vaccine Mandate was last modified: January 7th, 2022 by