As discussed in our previous post, multiple federal courts have issued preliminary injunctions blocking the Biden Administration’s COVID-19 vaccine mandate for employees of federal contractors.  On January 27, 2022, the United States District Court of Arizona issued a new and additional injunction barring enforcement of the mandate within the State of Arizona.  In so doing, the Arizona court added to the injunctions previously issued by the U.S. District Courts for the Eastern District of Kentucky, Western District of Louisiana, Eastern District of Missouri, Middle District of Florida, and Southern District of Georgia.

The Georgia injunction is the only one of the rulings that applies nationwide.  Like the Arizona injunction, the Missouri, Florida, and Kentucky injunctions are limited to specific states (collectively, Kentucky, Ohio, Tennessee, Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, North Dakota, South Dakota, Wyoming, and Florida).  The Louisiana injunction is also limited, but its limitations are based on entities rather than geography; it applies to contracts and other agreements between the federal government and the governments of Louisiana, Mississippi, and Indiana.  The Biden Administration has appealed these earlier decisions; we expect that an appeal of the Arizona decision to the Ninth Circuit will likewise be forthcoming.

At the same time, the Biden Administration’s other primary COVID-19 initiative for large employers — the vaccination and testing emergency temporary standard issued by the Occupational Safety and Health Administration (the so-called “OSHA Mandate”) — was stayed by the United States Supreme Court on January 13, 2022.  In the wake of that decision, OSHA announced on January 25, 2022 that it is withdrawing the enforceable emergency temporary standard.

While the Supreme Court’s decision halted immediate application of the OSHA Mandate, the emergency temporary standard qualifies as a proposed rule for purposes of OSHA’s notice-and-comment rulemaking process under 29 U.S.C. § 655, and OSHA has announced that it will continue to consider the emergency temporary standard pursuant to that process.  Accordingly, OSHA could attempt to promulgate a final rule (as opposed to an emergency temporary standard) that addresses vaccines or testing requirements.

The rest of this post consists of (1) an overview of the Arizona decision regarding the federal contractor vaccine mandate; and (2) an update on the status of the other challenges to the federal contractor vaccine mandate, including the Kentucky, Louisiana, Missouri, Florida, and Georgia litigations.

The Federal Contractor Vaccine Mandate & the Arizona Decision

On September 9, 2021, President Biden issued Executive Order 14042 to require employees of federal contractors and subcontractors be vaccinated against COVID-19.  This Executive Order is supplemented by additional guidance issued by the Safer Federal Workforce Task Force  (“SFWTF”) and is to be implemented through new FAR and DFARS clauses (our previous post on the implementing guidance can be found here).

The Executive Order relied on President Biden’s authority under the Federal Property and Administrative Services Act (“FPASA”), 40 U.S.C. § 101 et seq.  Numerous state governments, however, have alleged that President Biden exceeded the scope of that authority by requiring covered contractors to vaccinate their employees.

In the Arizona case, for example, the Arizona government (together with various co-plaintiffs) argued that FPASA was enacted “to ensure the efficient purchase of goods and services,” and that there was no nexus between that objective and the “far-reaching” public health goals embodied in the Executive Order.  The court agreed, holding that “[t]he Contractor Mandate exceeds the President’s authority under [FPASA],” and rejecting the Administration’s argument that decreasing the spread of COVID-19 would reduce employee absenteeism and lower labor costs, thereby improving efficiency in Government contracting.

In reaching that holding, the Arizona court rejected the Administration’s argument that the federal contractor vaccine mandate was similar to the Department of Health and Human Services’ (“HHS”) vaccine mandate for healthcare providers receiving Medicare and Medicaid funding, which was upheld by the Supreme Court.  The Arizona court held that the vaccine mandate for healthcare providers related to HHS’s statutory mandate to protect patient health and safety, while FPASA granted the President authority to issue procurement regulations, but not health and safety regulations.  The court therefore granted the plaintiffs’ motion for a preliminary injunction.

It remains to be seen, however, whether other federal courts — particularly at the appellate level — will be persuaded by the Arizona court’s logic.  It is possible that at least some courts will instead hold that if the Government has the right to insist on employee vaccination as a condition of receipt of Medicaid and Medicare funds, it likewise has the right to insist on employee vaccination as condition of receipt of federal funds pursuant to a procurement contract.  As discussed below, we may soon know the answer to that question.

Update and Status of Cases Challenging Federal Contractor Vaccine Mandate

Florida Lawsuit

• On October 28, 2021, Florida filed a challenge to the federal contractor vaccine mandate in the U.S. District Court for the Middle District of Florida.
• On December 30, 2021, the court entered a preliminary injunction effective in Florida based on its Dec. 23, 2021 ruling.
  • The Biden Administration appealed the injunction to the Eleventh Circuit.
• Since the Biden Administration filed the appeal,
  • The Eleventh Circuit:
    • Ordered briefing to be completed by approximately April 13, 2022.
    • Received an unopposed motion to vacate the briefing schedule and hold the appeal in abeyance pending resolution of the appeal in the Georgia suit, which is also being heard by the Eleventh Circuit.
  • The district court:
    • Stayed further proceedings pending resolution of the appeal, except to the extent it intends to address the balance of the motion for a preliminary injunction that it retained under advisement.

Georgia Lawsuit

• On October 29, 2021, seven states (Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia) filed a challenge in the U.S. District Court for the Southern District of Georgia.
• On December 7, 2021, the court issued a preliminary injunction effective on all covered contracts nation-wide.
  • The Biden Administration appealed the injunction to the Eleventh Circuit.
• Since the Biden Administration filed the appeal,
  • The Eleventh Circuit:
    • Denied the Biden Administration’s motion to stay the injunction pending appeal.
    • Expedited the appeal. Briefing is to be completed by February 22, 2022. Oral argument is scheduled for April 8, 2022.
  • The district court:
    • Stayed further proceedings pending final resolution of the appeal.
    • Denied the Biden Administration’s request to “clarify” the scope of the preliminary injunction, but in doing so made clear that it applies only to the vaccine portion of the mandate (i.e., it does not apply to the workplace safety aspects of the mandate, such as the requirements for masking and physical distancing).

Missouri Lawsuit

• On October 29, 2021, ten states (Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming) filed a challenge in the U.S. District Court for the Eastern District of Missouri.
• On December 20, 2021, the court issued a preliminary injunction effective in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming.
  • The Biden Administration appealed the injunction to the Eighth Circuit.
• Since the Biden Administration the appeal,
  • The Eighth Circuit:
    • Ordered briefing to be completed by approximately May 2, 2022.
  • The district court:
    • Stayed further proceedings pending resolution of the appeal.

Texas Lawsuit

• On October 29, 2021, Texas filed a challenge in the U.S. District Court for the Southern District of Texas.
• On December 10, 2021, the court stayed the case.

Kentucky Lawsuit

• On November 4, 2021, three states (Kentucky, Ohio, and Tennessee) filed a challenge in the U.S. District Court for the Eastern District of Kentucky.
• On November 30, 2021, the court issued a preliminary injunction effective on all covered contracts in Kentucky, Ohio, and Tennessee.
  • The Biden Administration appealed the injunction to the Sixth Circuit.
• Since the Biden Administration filed the appeal,
  • The Sixth Circuit:
    • Denied the Biden Administration’s motion to stay the injunction pending appeal.
    • Ordered briefing to be completed by March 23, 2022.
  • The district court:
    • Denied the administration’s motion to stay the injunction pending appeal.
    • Stayed further proceedings pending final resolution of the appeal.

Louisiana Lawsuit

• On November 4, 2021, three states (Louisiana, Indiana and Mississippi) filed a challenge in the U.S. District Court for the Western District of Louisiana.
• On December 16, 2021, the district court:
  • Issued a preliminary injunction effective on all contracts between the federal government and Louisiana, Indiana, and Mississippi, or their agencies
    • The Biden Administration appealed the injunction to the Fifth Circuit.
  • Stayed further proceedings pending further appellate action.
• Since the Biden Administration filed the appeal,
  • The Fifth Circuit:
    • Ordered briefing on the appeal of the injunction decision to be completed by May 2, 2022.

Oklahoma Lawsuit

• On November 4, 2021, Oklahoma filed a challenge in the U.S. District Court for the Western District of Oklahoma.
• On December 13, 2021, briefing on Oklahoma’s request for a preliminary injunction was completed.
• In January 2022, the parties filed supplemental briefing on the impact of the Supreme Court decisions regarding the OSHA and HHS vaccination mandates.

Conclusion

In light of the many upcoming decisions to be issued, we continue to expect to see significant developments in this area in the coming weeks and months.  It is quite likely that the patchwork nature of the litigation and the potential for conflicts between Circuit Court decisions will lead to the Supreme Court making the final determination regarding the federal contractor vaccine mandate, as it did with the OSHA and HHS mandates.

We will provide updates as events continue to unfold.  Meanwhile, it is important to remember that although the issued preliminary injunctions enjoin the federal government from enforcing the contractor vaccine mandate, they do not preclude employers from unilaterally imposing their own vaccine requirements as they await resolution of this issue.