With the last of the federal COVID-19 vaccination mandates shut down at least temporarily, employers are in a wait-and-see mode as they ponder next steps in the effort to do business during a pandemic.
On December 7, a federal judge in Georgia issued a nationwide injunction against the vaccine mandate on federal contractors. Previously, a federal requirement affecting employers with at least 100 employees and a regulation requiring vaccination for many healthcare employees were struck down. More legal action is on the way to determine the eventual fate of those mandates.
President Joe Biden issued Executive Order 14042 in September, directing employers that are federal contractors or subcontractors to require their employees be vaccinated against COVID-19.
In granting a preliminary injunction against the contractor vaccination mandate, the judge found those suing to stop it likely would succeed in their claim that the president exceeded his authority under the Federal Property and Administrative Services Act.
“So, while this is an immediate victory for those who oppose the mandate, and may signal what is ahead in terms of the final fate of the mandate, it is not a final decision on the mandate,” Kara E. Shea, an attorney with Butler Snow LLP in Nashville, Tennessee, says. “We anticipate that this decision will be appealed.”
Shea says the issue may ultimately be decided by a consolidated case before the federal Circuit Courts of Appeal, like what is happening with the rule for large employers. Also, the issue may eventually go to the U.S. Supreme Court.
Meaning for Employers
Although the federal government is expected to appeal, the Georgia judge’s decision “will likely give federal contractors and subcontractors additional time to review whether they are a covered contractor (or subcontractor) and, if so, the flexibility to wait for further developments in the litigation before implementing any of the requirements of Executive Order 14042, including the COVID-19 vaccine mandate,” Grant T. Collins, an attorney with Felhaber Larson in Minneapolis, Minnesota, says.
Contractors generally are free to mandate vaccines on their own instead of under a federal requirement, but “the complicating factor is that the contractors have to ensure they comply with the varying states’ laws on vaccine mandates,” Nita Beecher, an attorney with FortneyScott in Washington, D.C., says.
Currently, only Tennessee and Montana have state laws banning private employers from requiring employees to get vaccinated, but some other states require employer policies to provide additional exemptions to vaccine mandates, such as personal convictions against the shots.
Shea also warns employers to make sure they understand their rights and obligations under state laws. “Lots of attorneys opining on this on the national level are not familiar with these state laws, so it is highly recommended for employers to not rely on articles in national publications just addressing the federal issues, but seek state-specific advice,” she says, adding that employers under collective bargaining agreements also should get specific guidance.
Beecher says the Biden administration has to work its way through the litigation on all three of its vaccine rules—the mandate on large employers, which is awaiting further action from the Cincinnati-based U.S. 6th Circuit Court of Appeals, the mandate affecting healthcare workers, and the contractor mandate.
Since the federal requirements are on hold, Collins notes “vaccine mandates could get more ‘local.’” New York City just announced its own mandate forcing employers to require employees to be vaccinated, and some states have suggested they may implement their own mandates.
“As federal mandates fall, cities and states may take up the mantle in mandating vaccines,” Collins says. “And of course, businesses remain free in most states to develop their own employee vaccination policies.”
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.