While the fate of two COVID-19 vaccination rules by federal agencies were decided in January by the Supreme Court of the United States, millions of employees working for the federal government, whether directly or as a contractor, have been waiting for clarity in the wake of court orders halting Presidential efforts to promote vaccination.  Here is a brief update on the status of litigation challenging the extent of the President’s authority to command the Executive Branch.

Federal Employee Vaccine Mandate

On February 9, 2022, a divided panel of the United States Court of Appeals for the Fifth Circuit refused to lift a stay of Executive Order 14043 , the Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. That Order, instructing all federal agencies to implement a policy requiring all federal employees to be vaccinated against COVID-19, is one of two directives issued by President Joe Biden on September 9, 2021 as part of his administration’s original action plan (originally known as the “Path Out of the Pandemic” plan, which the Biden Administration recently replaced with a new National COVID-19 Preparedness Plan) to combat the ongoing pandemic. The stay had been issued by the District Court for the Southern District of Texas on January 21, 2022, in response to an application for a temporary injunction from plaintiffs who were led by a group of federal employees labeling themselves as “Feds for Medical Freedom.” As noted in the dissent to the Fifth Circuit panel’s decision, a dozen district courts in other states, from Florida to Washington, had previously rejected similar applications, but a sole judge effectively halted “the President’s exercise of authority over Article II [Executive Branch] employees.” Feds for Medical Freedom et al., v. Biden, No. 22-40043 at 3 (5^th Cir., Feb. 9, 2022, C.J. Higginson dissenting).

The Safer Federal Workforce Task Force, charged with developing and implementing guidance to help federal agencies maintain safe workplaces during the pandemic, issued guidance after the Federal employee vaccine mandate was enjoined, stating that the Federal Government would comply with the court order and would take no action to implement or enforce the vaccination requirement while it remains in force. The Fifth Circuit panel’s refusal to lift the injunction means, at least for now, that the federal government remains unable to pursue President Biden’s plan to have every federal employee get vaccinated against COVID-19.

Federal Contractor Vaccine Mandate

The other directive issued by President Biden on September 9th, Executive Order 14042, Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, mandated vaccinations for all contractors and subcontractors doing business with the federal government (described here). That Order unleashed a flurry of litigation filed in multiple states. As we explained previously, that Order was halted when a Southern District of Georgia court issued a nationwide preliminary injunction on the vaccine mandate for federal contractors. Four other district courts around the nation also issued preliminary injunctions of that mandate: the Eastern District of Kentucky, the Eastern District of Missouri, the Western District of Louisiana and the Middle District of Florida. An appeal of the Kentucky District Court’s injunction, which prohibits enforcement of the contractor vaccine mandate in Ohio, Kentucky, and Tennessee, was denied by the United States Courts of Appeals for the Sixth Circuit on January 5, 2022.  Appeals of the Louisiana, Missouri, and Georgia decisions are pending at the Fifth, Eighth, and Eleventh Circuits, respectively.

As with the federal employee vaccine mandate, the Safer Federal Workforce Task Force announced that the Government would take no action to enforce implementation of the Executive Order while and wherever court orders or injunctions prevent it from doing so. So far, only the Eleventh Circuit appeal has been fully briefed, and it will hear oral arguments on the nationwide injunction issued by the Southern District of Georgia on Friday, April 8, 2022. It is unlikely that the status quo will change any time before mid-April, so federal workers and contractors should likely wait until then to act on any related policies or initiatives.