December 7, 2021
A federal judge in Georgia issued a nationwide injunction blocking Biden’s vaccine mandate for federal contractors. The case is Georgia v. Biden, S.D. Ga., No. 21-cv-00163, 12/7/21. The mandate was set to take effect on January 4 and would have impacted an estimated quarter of the total U.S. workforce. As we reported previously here, the United States District Court for the Eastern District of Kentucky issued a preliminary injunction on November 30, 2021, but that injunction only applies to employers in the states of Kentucky, Ohio and Tennessee. The ruling today blocks the federal contractor vaccine mandate across the country.
The Biden Administration issued Executive Order 14042 on September 9, 2021, and would have required employees of covered federal contractors to be fully vaccinated by January 18, 2022. To meet that goal, covered employees would have had to take their second COVID-19 vaccine dose (or the Johnson & Johnson single dose) by January 4, 2022.
This is the latest nationwide judicial block of the Biden Administration’s efforts to use employment as a means of requiring vaccination. On November 30, a federal judge in Louisiana blocked the CMS Vaccine Mandate that would have required more than 10 million healthcare employees to be vaccinated. And on November 17, the Fifth Circuit Court of Appeals blocked the OSHA ETS Vaccine Mandate that would have impacted all employers with more than 100 employees. The OSHA ETS challenges have been consolidated for decision by the U.S. Sixth Circuit Court of Appeals.
In the Georgia v. Biden case, a group of seven states (Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia) were joined by the industry group Associated Builders and Contractors, Inc. to challenge the rule.
In granting the preliminary injunction, Judge R. Stan Baker found, “In this case, plaintiffs will likely succeed in their claim that the president exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act when issuing Executive Order 14042.” Based on ABC’s national membership and the fact that the mandate would have applied to “subcontractors and others,” the court found that a nationwide injunction was appropriate in order to avoid confusion among employers in different parts of the country.
Currently, federal lawsuits are pending in several other states, including Arizona, Florida, Texas and Oklahoma. We anticipate that this case will be appealed. If cases in other federal courts are also appealed, the issue ultimately could be consolidated into a single case before one of the federal Circuit Courts of Appeal, similar to the challenge to the CMS rule. If that happens, the Judicial Panel on Multidistrict Litigation would conduct a random lottery to determine which Circuit would be given responsibility for ruling on the matter. But for now, the “law of the land” is that the federal contractor vaccine mandate is no more. We will continue to monitor and keep you updated as this issue develops.
