With the end of the federal pandemic emergency declaration next month, employers may have thought that the legal wars over COVID-19 vaccination mandates may end as well. However, the Biden administration and anti-vaccination groups continue to litigate over the remaining mandates. Earlier this month, the Ninth Circuit Court of Appeals refused to uphold an injunction blocking the administration’s requirement for vaccination of employees of federal contractors.

In Mayes v. Biden, Arizona filed suit challenging the Executive Order imposing the contractor mandate. The state argued that under the federal Procurement Act, the President did not have the authority to issue the COVID-19 vaccination mandate. The Ninth Circuit disagreed, likening the Order to measures such as affirmative action that do not appear directly related to government procurement. Moreover, the court noted that the administration articulated economic reasoning for the mandate, specifically the increased ability of vaccinated workers to meet federal contracting needs.

This decision rejected the reasoning of two other federal appellate courts that found the vaccine mandate to be outside the President’s delegated powers. This circuit split may result in an appeal to the U.S. Supreme Court to resolve these differences. While the urgency of the contractor vaccination mandate may have receded, these legal questions could apply to future pandemics, as well as the overall ability of the President to use federal contracting as a means to influence contractors’ employment policies and practices.

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