Fifth Circuit Shoots Down Vaccination Mandate for Federal Contractors

A divided panel of the United States Court of Appeals for the Fifth Circuit has upheld a District Court injunction against the enforcement of the Biden Administration’s COVID-19 vaccination mandate for federal contractors in Louisiana, Mississippi, and Indiana. The Fifth Circuit’s decision comes after an earlier decision in August by the Eleventh Circuit, which also found that the mandate exceeded the President’s authority under the Federal Property and Administrative Services Act, or Procurement Act.

President Biden signed Executive Order 14042 on Sept. 9, 2021, which directed the Safer Federal Workforce Task Force to issue guidance on adequate COVID-19 safeguards for federal government contractors and subcontractors.  The Task Force subsequently issued guidelines requiring all covered federal contractors to ensure all their workers were vaccinated by Jan. 18, 2022. 

The three states sued the federal government, arguing that President Biden had overstepped his statutory and constitutional authority. On Dec. 15, 2021, District Court Judge Dee Drell of the Western District of Louisiana granted an injunction against the mandate in the three states, and the Biden Administration appealed the decision.

In upholding the injunction by a 2-1 vote, the Fifth Circuit focused on whether the President’s authority extended to such an expansive mandate. Writing for the majority, U.S. Circuit Judge Kurt D. Engelhardt stated “[w]e do not, and cannot, rule on the efficacy of any vaccine, the wisdom of the President’s action, or even whether or not this action would, in fact, increase economy and efficiency in federal contracting. Today, we are asked, where Congress has not authorized the issuance of this mandate, whether the President may nonetheless exercise this power. We hold that he may not.” 

Please contact David Korn or any member of the Phelps Labor and Employment team if you have questions or need advice or guidance.