Court Curbs Federal Contractor Vaccine Mandate

​A federal appeals court recently barred the federal government from requiring federal contractors in Kentucky, Ohio and Tennessee to be vaccinated for COVID-19. It's the latest in a series of court decisions that have struck down the vaccination mandate in certain regions.

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On Jan. 12, the 6th U.S. Circuit Court of Appeals unanimously ruled against the Biden administration, concluding it overstepped its authority when it required federal contractors to get COVID-19 vaccinations. The court called the scope of the mandate "stunning" because 20 percent of the U.S. workforce works for a federal contractor.

The court's decision does not extend beyond the three states involved in the case. The three states said the ruling should apply to federal contractors nationwide, including in states that weren't involved in the lawsuit, but the court rejected that argument.

Large federal contractors include companies like Lockheed Martin, Boeing, General Dynamics, Raytheon and Northrop Grumman.

Background

President Joe Biden issued an executive order on Sept. 9, 2021, stating that government contracts must include a clause specifying that federal contractors must ensure all contractor employees are fully vaccinated for COVID-19, unless the person is legally entitled to an accommodation. The Biden administration said the mandate was justified under the Federal Property and Administrative Services Act of 1949. It argued that requiring contractors to have a vaccinated workforce enhances efficiency by reducing absenteeism and decreasing labor costs.

Covered contractor employees included full- and part-time employees, noted Emily Harbison, an attorney with Reed Smith in Houston.

Federal subcontractors were subject to the requirement, as well, said Sheila Willis, an attorney with Fisher Phillips in Columbia, S.C.

Kentucky, Ohio and Tennessee, along with two Ohio sheriff's offices, sued Biden and several federal agencies to block the mandate. The states said the vaccine mandate carried compliance costs, and they would lose federal contracts unless they agreed to modify contracts to include the vaccine mandate.

The U.S. Chamber of Commerce filed a friend of the court brief arguing that the vaccine mandate should be invalidated because it extends too far beyond the act's goals. "Interpreting regulatory authority over issues regarding procurement and federal contracting to include the power to regulate anything related to day-to-day health risks would significantly expand the president's authority," it said.

Before the recent court ruling, the federal government was already stepping away from the vaccine mandate. In August 2022, the Biden administration updated its Safer Federal Workforce Task Force guidance and announced it wouldn't enforce the vaccine mandate on federal contractors. That happened a few days after the 11th Circuit Court of Appeals ruled that the federal government couldn't enforce the vaccine mandate on federal contractors in seven Republican-led states that had sued: Alabama, Georgia, Idaho, Kansas, South Carolina, Utah and West Virginia.

In December 2022, the 5th Circuit struck down the vaccine mandate in Indiana, Louisiana and Mississippi for the same reasons. "The president's use of procurement regulations to reach through an employing contractor to force obligations on individual employees is truly unprecedented," it said.