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The federal contractor COVID-19 vaccine mandate set forth in Executive Order 14042 is at the forefront
again. On Friday, Aug. 26, 2022, a divided Eleventh Circuit Court
of Appeals panel partially overturned the nationwide injunction put in place by a Georgia court late last
year. The same appeals court had previously declined to stop the injunction
pending appeal.
In Georgia, et al. v. President of the United States, et
al., Case No. 21-14269, the three judge panel held 2-1 that
the Southern District of Georgia’s decision to award the
preliminary injunction was proper, reasoning that the plaintiffs
were likely to win on the merits. However, while the majority
agreed that the injunction was proper, they took issue with the
nationwide scope of the injunction. The court held that the broad
scope of the injunction was a “drastic form of relief,”
which should be rarely exercised. The court then narrowed the scope
of the injunction to only the plaintiffs: the states of Georgia,
Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia,
and the members of the trade group Associated Builders and
Contractors (ABC).
Writing separately, Judge R. Lanier Anderson disagreed that the
plaintiffs had shown they were likely to win on the merits. As
such, he believed that the district court acted outside its
authority in granting any injunction. But, Judge Anderson also
believed the injunction in place was too broad, so he joined the
majority decision in narrowing its scope to just the
plaintiffs.
What does this mean for contractors? If you are doing business
in one of the seven plaintiff states, or are a member of ABC, the
injunction is still in place and you cannot be required to comply
with the vaccine mandate. Note also that a similar injunction is
still in place for the states of Kentucky, Ohio, and Tennessee. Enforcement of
the mandate in other states is now up in the air.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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