The decision of the U.S. Court of Appeals for the Fifth Circuit in BST Holdings, L.L.C. v. Occupational Safety and Health Administration, 2021 WL 5279381 (5th Cir. Nov. 12, 2021)(Unpublished), recently extended a sweeping stay of OSHA’s vaccination mandate for companies with 100 employees or more until the full evidentiary hearing on motions for preliminary and permanent injunctions. 

On the heels of that stay, the U.S. District Court for the District of Georgia issued a nationwide preliminary injunction this week preventing the federal government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America” pending the outcome of the ongoing litigation. Georgia v. Joseph R. Biden, in his official capacity as President of the United States, Civil Action no. 1:21-cv-00163-RSB-BKE (Dec. 7, 2021). 

After an evidentiary hearing on motions for preliminary injunction, the Court held that despite the fairly broad authority granted to the President under the Federal Property and Administrative Services Act, 40 U.S.C. § 101 et seq., “the Court is unconvinced, at this stage of the litigation, that it authorized him to direct the type of actions by agencies that are contained” in Executive Order 14042 mandating vaccinations for federal contractors. Id. at *19. The Court found 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. Id. at *20 (footnotes omitted). Thus, the Court found that EO 14042’s mandates were not authorized by the Act. Based on the testimony presented, the Court also held that the compliance measures incurred by government contractors constitute irreparable harm warranting the injunctive relief sought, and that the balance of harms weighs heavily in favor of injunctive relief. Id.  at *24-25.

This summary does not constitute legal advice. Anyone reviewing this summary should seek appropriate counsel and legal advice before acting on the holdings of these cases or this discussion.