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Federal Contractor Vaccine Mandates Remains Blocked in Certain States

The federal contractor vaccine mandate has been an ongoing source of litigation. On January 12, 2023, the U.S. Court of Appeals for the Sixth Circuit upheld most of a district court’s injunction blocking the federal contractor vaccine mandate in Kentucky, Ohio and Tennessee.

The Sixth Circuit held that federal procurement law did not authorize the President‘s September 2021 Executive Order (E.O.) 14042, which mandates COVID-19 vaccinations and other COVID-19 safety measures for federal contractors and subcontractors. However, the appellate court did narrow the injunction’s scope. While the district court’s injunction had applied to any contractors in the plaintiff states of Kentucky, Ohio and Tennessee, the Sixth Circuit limited it to only the parties to the litigation in Kentucky, Ohio, Tennessee and two Ohio sheriffs’ offices.

The Sixth Circuit’s decision follows similar decisions by the Eleventh Circuit Court of Appeals and the Fifth Circuit Court of Appeals, which also recently upheld injunctions against the mandate in various states. The Eighth Circuit Court of Appeals is also expected to weigh in on the legality of E.O. 14042 in the coming months.

In the meantime, the government has continued to delay enforcement of the mandate. Federal guidance states, “the Federal Government will take no action to implement or enforce Executive Order 14042. For existing contracts or contract-like instruments (hereinafter ‘contracts’) that contain a clause implementing requirements of Executive Order 14042, the Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency.”

Next Steps for Employers

All federal contractors, regardless of their geographic location, may continue to delay implementation as the Biden Administration will not be enforcing the mandate for any federal contractors at this time. However, it is recommended that covered federal contractors and subcontractors should continue to monitor pending district and appellate court litigation, as well as the Safer Federal Workforce Task Force website, for further guidance on the implementation and enforcement of the contractor COVID-19 vaccine mandate.

HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.