On Aug. 26, the U.S. Court of Appeals for the 11th Circuit issued its long-awaited decision on the federal contractor COVID-19 vaccine mandate case. In a major victory for ABC and its members, the 11th Circuit’s decision narrowed the December 2021 nationwide preliminary injunction granted by the Georgia District Court to only ABC members who bid on federal contracts and the state plaintiffs in the case. The 2021 injunction was a direct result of ABC intervening as the lone business group challenging the federal contractor vaccine mandate, along with the seven plaintiff state governments.

The 11th Circuit’s decision on the Biden administration’s appeal has made it clear that ABC members and state plaintiffs “need not comply with the vaccination requirement in their capacity as contractors, and they are not responsible for including that requirement in lower-tier subcontracts.” For more information about the decision, read the alert issued by the law firm that represented ABC, Wimberly & Lawson.

“ABC will continue to lead efforts to push back on the Biden administration’s executive overreach harming federal contractors with respect to COVID-19 vaccine mandates and other anti-competitive and costly policies targeting federal contractors, such as the proposed rule implementing President Biden’s Executive Order 14063, which requires controversial union-favoring government-mandated project labor agreements on federal construction projects of $35 million or more,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs, in a statement.

The decision has garnered nationwide coverage from publications such as the Associated Press, The Wall Street Journal (reach: 29M), Yahoo News (64M), Bloomberg, the Daily Mail (80M), The Epoch Times (12M), Spectrum News, the National Desk, The Federal News Network, Government Executive, WTOP and nearly 400 other media outlets.

ABC National will be hosting a webinar on Wednesday, Sept. 21, at 3 p.m. ET on the 11th Circuit’s decision and how it affects ABC federal contractor members.

Further, ABC will keep federal contractor members apprised of any issued updates from the Safer Federal Workforce Task Force, which provides the guidance implementing the federal contractor vaccination mandate. As of this writing, the Biden administration and the task force have not provided any public reaction to the Aug. 26 decision and it is unclear if they will appeal to the U.S. Supreme Court or reinstate a modified version of the regulation conforming to the decision.

Background:

On Nov. 30, 2021, a Kentucky district court preliminarily enjoined the COVID-19 vaccination mandate that was established for federal contractors pursuant to Executive Order 14042, but only for three states—Kentucky, Ohio and Tennessee.

On Dec. 7, a Georgia federal judge granted ABC’s motion to intervene and issued a nationwide preliminary injunction order against the mandate. Judge Baker’s decision made it clear that ABC’s participation in the case was essential to getting nationwide relief, which would otherwise have been limited to the states that sued. This was a big win for ABC, the only private business group that joined the states in suing over this mandate. 

On Dec. 9, the Safer Federal Workforce Task Force provided an update indicating it would take no action to enforce the requirements of Executive Order 14042 pending the outcome of appeals.

On Dec. 17, the 11th Circuit kept in place the Georgia court’s nationwide injunction against the federal contractor vaccination mandate.

The appeals court for the 11th Circuit held oral arguments on April 8.

On Aug. 26, the 11th Circuit decision granted a preliminary injunction only to ABC member federal contractors (and all subcontractors bidding under ABC prime contractors) because ABC was the only business group to engage in this case with state plaintiffs. Several other lawsuits challenging this mandate remain pending in federal district courts throughout the nation and may result in additional litigation activity following the decision.

In another COVID-19 vaccine case, ABC applauded the U.S. Supreme Court for its Jan. 13, 2022, decision reinstating the stay on the U.S. Department of Labor’s Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard, which applied to all employers with 100 or more employees. On behalf of the construction industry, ABC filed one of the emergency appeals to the Supreme Court leading to this successful outcome.

Please continue to monitor Newsline for any further updates on this important issue. ABC members are encouraged to send a message to Karen Livingston at [email protected] should any vaccine mandates be detected in forthcoming federal solicitations for construction services applicable to ABC members and/or subcontractors to ABC members.