COVID-19 Vaccine Mandate Ruled Unlawful . . . But Now Applicable To Federal Contractors in PA

On August 26, 2022, the U.S. Court of Appeals for the Eleventh Circuit ruled on the Government's appeal of a nationwide injunction issued in State of Georgia v. Biden.  The preliminary injunction had prohibited the Government from enforcing Executive Order 14042, which required COVID-19 vaccination for all federal contractor employees.  The Eleventh Circuit is the first federal appellate court to address the legality of EO 14042 and affirmed the lower court's decision that the vaccine mandate is likely unlawful.  Despite this ruling, the Eleventh Circuit's ruling has two significant impacts for many federal contractors.

First, the ruling narrowed the nationwide injunction issued in Georgia v. Biden such that it effectively covers only the parties to the litigation.  As a result, the government is now enjoined from enforcing EO 14042’s vaccine mandate only against federal contractors in the plaintiff states -- Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia -- and against contractors that are members of Associated Builders and Contractors, Inc., a national trade association that joined the litigation.  Second, federal agencies are now enjoined from considering whether offerors comply with the vaccine mandate when evaluating proposals and awarding contracts, but only in procurements where an offeror falls into one of the above plaintiff categories.

Presuming the government elects to renew its enforcement of EO 14042, federal contractors in Pennsylvania and other non-plaintiff states that are not members of Associated Builders and Contractors, Inc. may now be subject to the vaccine mandate, either in connection with performance of a covered contract or submission of a proposal in response to a federal solicitation.  Moreover, with injunctions of EO 14042 currently under review in several other circuit courts, contractor obligations may be shifting again.  If you are a federal contractor and have questions about COVID-19 vaccine requirements for your employees, please contact Bill Speros or another attorney at our firm.


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