United States: Federal Contractor Vaccine Mandate Continues To Crumble

"The President asks this Court to ratify an exercise of proprietary authority that would permit him to unilaterally impose a healthcare decision on one-fifth of all employees in the United States. We decline to do so."¹ So reads the Fifth Circuit decision in which the Court blocked enforcement of a mandate issued by the Safer Federal Workforce Task Force ("Task Force") (acting under an Executive Order from President Biden) that generally requires federal contractors and subcontractors to ensure that their workforce is fully vaccinated against COVID-19. While the decision only applies to federal contracts with the states that filed the lawsuit, it represents yet another blow to the ability of a President to mandate vaccinations through an Executive Order.

The vaccine mandate has been challenged in a number of lawsuits, and the Fifth Circuit is one of four appellate courts in different areas of the country called to evaluate the enforceability of the mandate. The Fifth Circuit's decision affirmed a lower court's order blocking the mandate in a lawsuit brought by three states—Indiana, Louisiana, and Mississippi—against President Biden in his official capacity. The states brought suit in their capacities as federal contractors themselves. The lower court held that the injunction would only apply to "all contracts, grants, or any other like agreement by any other names between the Plaintiff States and the national government."

In affirming the lower court's decision, the Fifth Circuit relied on the "major questions doctrine" to limit on the President's authority. The major questions doctrine is the expectation that Congress will speak clearly when authorizing an agency to exercise powers of vast economic and political significance. This is the same doctrine that the United States Supreme Court considered when evaluating the vaccination mandate imposed by the Occupational Safety and Health Administration (OSHA) and finding that OSHA exceeded its authority. Here, the Fifth Circuit found that Congress has not spoken clearly to authorize such presidential power, and that the "President's use of procurement regulations to reach through an employment contractor to force obligations on individual employees is truly unprecedented." The decision emphasized that the vaccine mandate is unlike past federal contractor mandates for several reasons, including the fact that the vaccine mandate purports to govern the conduct of employees and their individual healthcare decision—and not just any decision, but an irreversible one.

As a result of this lawsuit and others, in October 2022, the Task Force issued guidance advising agencies not to take steps to implement or enforce the vaccination mandate across the country,² despite the Eleventh Circuit issuing an order in August 2022 lifting the nationwide stay of the mandate.³ We do not anticipate this guidance to change in the near future, particularly given this new decision. Unless there is a significant new development, this most recent decision reduces the likelihood that the federal government will attempt to enforce the federal contractor vaccine mandate in any area of the country or in any context.

Footnotes

1. State of Louisiana, et al. v. Biden, et al., No. 22-30019 (5th Cir., December 19, 2022). The case can be found here.

2. Safer Federal Workforce, https://www.saferfederalworkforce.gov/contractors/ (last visited December 21, 2022).

3. State of Georgia, et al. v. President of the United States, et al., No. 21-14269 (11th Cir., August 26, 2022). The case can be found here.

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