On December 17, 2021, the Eleventh Circuit refused to stay a nationwide injunction blocking the federal contractor COVID-19 vaccine mandate from going into effect, pending appeal. By way of background, on Tuesday, December 7, a federal district court in Georgia granted a motion for preliminary injunction, in effect banning enforcement of the federal contractor vaccine mandate in every state. In doing so, the district court found the executive branch likely had overstepped its constitutional authority to issue the mandate. Two days later, on December 9, the U.S. government filed a notice of appeal to the Eleventh Circuit challenging the federal contractor vaccine mandate injunction. In addition to the appeal, the U.S. also filed an emergency motion to stay the preliminary injunction pending appeal. On December 17, the Eleventh Circuit denied the U.S. government’s motion for emergency stay, saying the federal government failed to show it would suffer “irreparable injury” absent a stay. Therefore, unlike the OSHA Emergency Temporary Standard’s shot-or-test rule (OSHA ETS) – which will continue to be enforceable pending appeal – enforcement of the federal contractor vaccine mandate will be halted while the district court’s ruling is appealed.
Notably, the Court is expediting the federal government’s appeal of the preliminary injunction and set the case for the next available oral argument. As a result, the U.S. must file its initial brief no later than January 3, 2022. The opposing parties must file their answering briefs no later than January 17, 2022, and any reply briefs must be filed no later than January 24, 2022. This will make for a very eventful January, as oral argument before the U.S. Supreme Court on the challenge to OSHA ETS has been set for January 7, 2022.
For now, until the Eleventh Circuit rules on the federal government’s appeal, enforcement of the federal contractor vaccine mandate continues to be halted. In response, the Office of Management and Budget’s guidance on the implementing requirements of EO 14042 have been updated to explain that “[t]he Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency...”
Employers should be on the alert for guidance from federal agencies and contracting officers concerning the halted implementation and enforcement of the Federal Contractor Vaccine Mandate and consult with counsel on appropriate steps to take in relation to their vaccination policies. Additionally, employers should continue to encourage vaccination and prepare in the event the Court reverses the federal contractor vaccine injunction.
We will provide updates as this litigation processes. If you have any questions, please contact the authors of this Alert, Nancy Holt, partner in our D.C. office at nholt@fordharrison.com, or Erica Johnson, at ejohnson@fordharrison.com, associate in our Memphis office. Both are members of FordHarrison’s Affirmative Action/OFCCP practice group. Of course, you can also contact the FordHarrison attorney with whom you usually work.