On May 1, the Safer Federal Workforce Task Force (SFWTF) issued an update that the Biden administration plans to end COVID-19 vaccination mandates established under Executive Orders (EO) 14042 on Ensuring Adequate COVID Safety Protocols for Federal Contractors and EO 14043 on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees.  

The update detailed that President Biden will issue an EO rescinding the COVID-19 vaccination mandates, effective 12:01 a.m. on May 12, 2023.  Agencies were informed to take no other actions to implement or enforce the COVID-19 vaccination mandates under EOs 14042 and 14043.

This significant update follows an April 19 U.S. Court of Appeals for the Ninth Circuit decision reversing a permanent injunction that enjoined President Biden’s “Contractor Vaccine Mandate,” and created a circuit split with regard to the mandates which our blog covered here.  The SFWTF update indicates that the Biden administration’s COVID-19 vaccination mandates vis-à-vis EO 14042 and 14043 have effectively been terminated and will, therefore, likely conclude any ongoing federal litigation related to these mandates.

Background

On September 9, 2021, President Biden signed EO 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, mandating that all federal contractors and subcontractors implement COVID-19 safety protocols in their workplaces, including vaccine mandates.  EO 14042 directed the SFWTF to issue guidance and work with the Federal Acquisition Regulatory Council to implement the order.

Subsequently, on November 4, 2021, President Biden issued EO 14043, Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, mandating all federal employees to be vaccinated against COVID-19, with certain limited exceptions.  EO 14043 similarly directed the SFWTF to issue guidance and to work with agencies to implement the order.

Legal Challenges

EOs 14042 and 14043 were both challenged in federal court and on December 7, 2021, U.S. District Court Judge R. Stan Baker of the Southern District of Georgia issued a nationwide injunction against the enforcement of the vaccine mandate for federal contractors.  The injunction was primarily issued on the grounds that the mandate exceeded the president’s authority under the Federal Property and Administrative Services Act (FPASA).

Since the issuance of the original preliminary injunction against President Biden’s COVID-19 vaccine mandates on December 7, 2021, the Fifth, Sixth, Ninth and Eleventh Circuits have all weighed in on injunctions issued by district courts.  Accordingly, there was uncertainty about both the future of the mandates and how federal government agencies would effectively implement them.

Guidance to Agencies

Importantly, the update informs agencies not to take any further action to implement or enforce the COVID-19 vaccination mandates under EOs 14042 and 14043 to ensure compliance with the ongoing nationwide preliminary injunction.

Finally, the SFWTF update noted it would issue additional guidance following the president’s anticipated EO rescinding the COVID-19 vaccination mandates.  Federal contractors and subcontractors should take note of these looming changes and await further guidance from President Biden’s forthcoming EO and SFWTF.