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.
In its decision, the unanimous three-judge panel described “[t]he mandate’s scope” as “stunning,” noting that it effectively applied to “tens of millions of Americans.” The Sixth Circuit held that federal procurement law did not authorize President Joe Biden’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—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 both 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 hold off on enforcing the mandate. The Office of Management and Budget’s October 2022 guidance instructs federal agencies not to take any steps to implement or enforce the vaccine mandate, absent additional guidance.
The Sixth Circuit’s decision is the latest in a string of E.O. 14042 appellate losses for the Biden administration. Covered federal contractors and subcontractors may want to 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.
Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group will continue to monitor developments regarding legal challenges to the federal contractor vaccine mandate and will post updates in the firm’s Coronavirus (COVID-19) Resource Center and on the firm’s Affirmative Action / OFCCP and Government Contractors blogs as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.