On December 7, 2021, the U.S. District Court for the Southern District of Georgia issued an order enjoining the COVID-19 vaccine mandate for federal contractors and subcontractors pursuant to Executive Order 14042 (Executive Order) from going into effect nationwide.  Although the Georgia court discussed the “tragic toll” the COVID-19 pandemic has wrought, the court ruled it was likely that the plaintiffs will succeed in their claim that President Biden exceeded his authority when issuing the Executive Order.

The court concluded that each of the four requirements for issuing a preliminary injunction were met: (1) a substantial likelihood of ultimate success on the merits; (2) an injunction is necessary to prevent irreparable injury; (3) the threatened injury outweighs the harm of the injunction; and (4) the injunction would not be adverse to the public interest.

The court reasoned that the plaintiffs were likely to succeed on the merits because the court was unconvinced the Procurement Act clearly authorized President Biden to issue the Executive Order.  The court reasoned that the Procurement Act allows the President wide ranging authority over administrative and management issues, but does not clearly authorize the President to issue a public health regulation like the Executive Order.

In addition, the court held that an injunction was necessary to prevent irreparable injury due to the costs to federal contractors in complying with the mandate.  The court further reasoned the Executive Order’s threatened injury outweighed any potential harm of the injunction because the injunction maintains the status quo, and federal contractors can choose to encourage employees to get vaccinated, leaving employees the choice whether to get the shot.  The court discussed how, if the injunction was denied, federal contractors would be required to make decisions that would “significantly alter their ability to perform federal contract work which is critical to their operations.”

Finally, the court found granting the injunction is in the public interest due to the “economic uncertainty” and “workplace strife” caused by the Executive Order, and granted the preliminary injunction enjoining enforcement nationwide.  The court’s order follows the decision from the U.S. District Court for the Eastern District of Kentucky granting a preliminary injunction to block enforcement of the Executive Order in Kentucky, Ohio, and Tennessee.  The Kentucky decision has been appealed, and we expect the federal government to appeal the Georgia decision.  However, federal contractors and subcontractors are not currently required to comply with the Executive Order’s requirement to have all covered employees fully vaccinated by January 18, 2022.

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