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The Biden administration has faced an uphill battle regarding COVID-19 vaccine mandates since President Biden took office. In the Fall of 2021, President Biden issued Executive Order 14042. Among its requirements, the Order required that federal contractors and subcontractors mandate that their employees be vaccinated against COVID-19.

In response to the Order, Attorneys General of several states filed federal lawsuits claiming that the vaccine mandate was outside the scope of President Biden’s powers. Unanimously, the federal district court judges have enjoined the federal government from enforcing the mandate. In December 2022, the Fifth Circuit became the fourth federal appellate court to hear challenges to the President’s Order. Aligning with the opinions of the other courts, the Fifth Circuit upheld the injunction, thereby enjoining enforcement of the federal contractor vaccine mandate in Louisiana, Indiana, and Mississippi. Notably, in affirming the injunction, the Fifth Circuit found that if the mandate were upheld, it would give the President “nearly unlimited authority to introduce requirements into federal contracts.”

In addition to Louisiana, Indiana, and Mississippi, the federal government is currently enjoined from enforcing the mandate against federal contractors in 22 other states (Alabama, Alaska Arizona, Arkansas, Florida, Georgia, Idaho, Iowa, Kansas, Kentucky, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Wyoming). Although the government could technically decide to enforce the mandate in jurisdictions not subject to an injunction, the Safer Federal Workforce website states that at this time the government will take no action to implement or enforce the Order without further written notice from the Agency.

Buchanan continues to monitor the COVID-19 legal landscape and is equipped to provide guidance in navigating the frequent changes including state or local differences in this area of the law. We encourage you to contact us with any questions or assistance regarding COVID-19 vaccine mandates.