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Oral Argument on Federal Contractor Vaccine Mandate and Potential Impact of Supreme Court Decisions

March 24, 2022

Overview

Oral Argument Scheduled for April 8 on Federal Contractor Vaccine Mandate Injunction

Scheduled for April 8, 2022, with each side being afforded 15 minutes for argument. It appears that oral argument may be livestreamed by the 11th Circuit. 

Injunction Against Federal Contractor Vaccine Mandate

Oral argument held on the United States’ appeal of a federal district court judge’s December 7, 2021, decision in Georgia v. Biden, Case No. 1:21-cv-163, issued a preliminary stop to the vaccine mandate for federal contractors and subcontractors in covered contracts in any state or territory of the United States. 

The district court found the plaintiffs were likely to succeed on their claim that the federal contractor vaccine mandate exceeded the scope of the President’s authority under the Federal Property and Administrative Services Act, 40 U.S.C. § 101 et seq. (the Procurement Act). The district court concluded that the authority granted to the President under the Procurement Act did not extend to imposing a federal contractor vaccine mandate, finding that “Plaintiffs have a likelihood of proving that Congress, through the language it used, did not clearly authorize the President to issue the kind of mandate contained in EO 14042, as EO 14042 goes far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead, in application, works as a regulation of public health, which is not clearly authorized under the Procurement Act.”

The Impact of OSHA and DHHS Supreme Court Decisions on Federal Contractor Vaccine Mandate

After the district court issued Georgia v. Biden, the U.S. Supreme Court decided two cases: one challenging the Occupational Safety and Health Administration (OSHA) large-employer Emergency Temporary Standard (ETS) and one challenging a Department of Health and Human Services (DHHS) vaccine mandate for health care providers that receive federal Medicare/Medicaid funds. 

In the OSHA case, the Supreme Court stayed implementation of the ETS that imposed a vaccine/testing mandate on employers with 100 or more employees. Justices John Roberts, Amy Coney Barrett, and Brett Kavanaugh issued the decision to stay the OSHA ETS. Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas concurred with their own separate opinion. Justices Sonia Sotomayor, Stephen Breyer, and Elena Kagan dissented. A majority of the Supreme Court found that given the breadth and extent of the OSHA ETS, the 1970 Occupational Safety and Health Act (the Act) needed to “plainly authorize” the Secretary’s mandate for it to be permissible. The Supreme Court then concluded that the Act did not “plainly authorize” the ETS because the Act only addresses workplace safety and does not address public health generally, “which falls outside of OSHA’s sphere of expertise.” A more detailed discussion of the Supreme Court’s decision striking down OSHA’s ETS is available here

At the same time, the Supreme Court upheld DHHS’ decision to adopt a rule that requires facilities receiving Medicare and Medicaid funding to ensure that their staffs—unless exempt for medical or religious reasons—are vaccinated against COVID-19. Justices Roberts, Sotomayor, Breyer, Kagan, and Kavanaugh joined in the decision to uphold DHHS’ vaccine mandate. Justices Alito, Gorsuch, Barrett, and Thomas dissented. A majority of the Supreme Court concluded that DHHS’ vaccine mandate fit “neatly” within DHHS’ statutory authorization to “impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.’” A more detailed discussion of the Supreme Court’s decision upholding the DHHS mandate is available here

Although the Supreme Court’s decisions striking down OSHA’s ETS and upholding the DHHS vaccine mandate are not directly applicable to the federal contractor vaccine mandate, as they address different statutory regimes, the Supreme Court’s decisions in those two cases provide insight into how they would address the federal contractor vaccine mandate. The Supreme Court’s decisions striking down OSHA’s ETS and upholding DHHS’ vaccine mandate were both rooted in an analysis of the statutory authority and whether it “clearly” (in the OSHA ETS case) or “neatly” (in the DHHS case) fit within the language of the statute. 

In striking down the OSHA ETS, a majority of the Supreme Court concluded the ETS was too broad and not a valid exercise of OSHA’s statutory authority. The Court criticized the ETS for being an “indiscrimi­nate approach” that “fail[ed] to account for this crucial distinction—between occupational risk and risk more generally—and, ac­cordingly, the mandate takes on the character of a general public health measure, rather than an ‘occupational safety or health standard.’” Fundamentally, the Court found that given the breadth and extent of the OSHA ETS, the OSH Act needed to “plainly authorize[ ] the Secretary’s mandate” and that it did not because “no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.” Thus, in striking down OSHA’s ETS, the Supreme Court signaled that when considering government vaccine and testing mandates, it may require statutory language that “plainly authorize[s]” the vaccine/testing mandate. 

In affirming the DHHS’ vaccine mandate, a majority of the Supreme Court concluded that DHHS’ vaccine mandate fit “neatly” within DHHS’ statutory authorization to “impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.’” The Supreme Court reasoned:

“The rule thus fits neatly within the language of the stat­ute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is con­sistent with the fundamental principle of the medical pro­fession: first, do no harm.”

The majority decision upholding the DHHS vaccine mandate rejected the dissenters’ argument that the statutory language only authorized DHHS to “impose no more than a list of bureaucratic rules regarding the technical administration of Medicare and Medicaid,” stating:

“But the longstanding practice of Health and Human Ser­vices in implementing the relevant statutory authorities tells a different story. As noted above, healthcare facilities that wish to participate in Medicare and Medicaid have al­ways been obligated to satisfy a host of conditions that ad­dress the safe and effective provision of healthcare, not simply sound accounting…. Moreover, the Secretary routinely imposes conditions of participation that relate to the qualifications and duties of healthcare workers themselves…. And the Secretary has always justified these sorts of re­quirements by citing his authorities to protect patient health and safety.”

Ultimately, the Supreme Court concluded that “[t]he challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not con­ferred upon it. At the same time, such unprecedented cir­cumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.”

Whether the 11th Circuit and, ultimately the Supreme Court, will uphold or strike down the federal contractor vaccine mandate cannot be predicted with any degree of certainty. However, the Supreme Court’s decisions striking down OSHA’s ETS and upholding DHHS’ vaccine mandate are both rooted in an analyze of the statutory authority and whether it “clearly” or “neatly” fit within the language of the statute. The Procurement Act does not reference “health or safety” or vaccines, and the government may have an uphill climb to convince the 11th Circuit, and ultimately the Supreme Court, that the federal contractor vaccine mandate is a valid exercise of the President’s authority. 

What Should Federal Contractors Do?

So what does that mean? First, there is a significant possibility that the injunction against the federal contractor vaccine mandate will be upheld by the 11th Circuit and that, given the Supreme Court’s decisions in the OHSA and DHHS cases, the United States will not appeal that decision to the U.S. Supreme Court. If that occurs, federal contractors will not have to comply with the federal contractor vaccine mandate or the requirements of the Safer Federal Workforce Task Force. 

Federal contractor employees will, however, continue to be required to comply with any COVID-19 rules adopted by federal agencies for federal buildings and workplaces, including attesting as to their vaccination status or providing evidence of a negative COVID-19 test result from within the last three days if they are in community where COVID-19 transmission is medium or high prior to entering a federal building or workplace

However, if the 11th Circuit overturns the district court’s injunction, the Safer Federal Workforce Task Force will likely promptly establish a new deadline for federal contractor compliance. Although it is unclear how much time the Safer Federal Workforce Task Force will give to federal contractors to comply with its guidance, it is likely that the Safer Federal Workforce Task Force will establish a relatively short deadline for federal contractors to comply, given their prior announcements and because their guidance has been available for some time. 

Accordingly, it would make sense, to the extent that it is possible, for federal contractors to be prepared to take steps to comply with the federal contractor vaccine mandate at this point but not implement any specific provisions. These steps could include:

  • Review the status of any policies and forms you have developed to be used if the federal contractor vaccine is affirmed by the appellate courts so that you will know what policies and forms will need to be completed or updated if the injunction is overturned.
  • Review the status of your contracts to determine which contracts had the contractual clause added requiring the contractor to comply with the federal contractor vaccine mandate prior to issuance of the injunction, so that you will know which employees would be impacted by the federal contractor vaccine mandate if it is implemented.
  • Review the vaccination status of your federal contractor employees to, again, identify the scope of employees that would be impacted by the federal contractor vaccine mandate if it is implemented.
  • Actively monitor the Safer Federal Workforce Task Force guidance for updates regarding deadlines for compliance in light of the injunction.

We will provide an update after oral argument and after any decision is issued by the 11th Circuit. Given that oral argument is set for April 8, and the 11th Circuit has previously rejected the United States’ request for expedited consideration, we think it is likely a decision will not be issued until late April or early May, at the earliest. 

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.

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