Another Blow Dealt To Contractor Vax Mandate

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Constangy, Brooks, Smith & Prophete, LLP

It's now 3-0 against the feds, in case you're counting.

A federal judge in Louisiana issued yet another preliminary injunction preventing enforcement of the federal contractor vaccine mandate. Judge Dee D. Drell (appointed by President George W. Bush) granted the preliminary injunction in favor of the plaintiff states -- Louisiana, Mississippi, and Indiana. 

This injunction is narrower in scope than the previous injunctions from other courts. (One federal judge enjoined enforcement of the mandate in Tennessee, Ohio, and Kentucky, and another federal judge imposed a nationwide injunction). Here, only agreements between the federal government and the three petitioning state governments (Louisiana, Mississippi, and Indiana) are implicated. Because no evidence was presented regarding the effect of the vaccine mandate on private contractors in any state or on other state governments, Judge Drell limited the application of the ruling. 

Judge Drell's order provided interesting insight regarding the reach of the government's vaccine mandate. Despite the express exclusion of grants from the coverage of Executive Order 14042, evidence presented by the University of Louisiana System demonstrated that the National Institutes of Health requested that the University comply with the Task Force Guidance by adding the contract clause to an existing grant. The Chief Executive Officer of the University System testified regarding "the university's lack of bargaining power and . . . lack of any guarantee by the NIH that the grant would continue if [the university] didn't comply or that future contracts wouldn't be impacted if [the university] chose not to modify the existing grant." Judge Drell characterized as "completely disingenuous" the federal government's position that modifications to existing contracts are not covered by the Executive Order and that the university could decline the amendment. According to Judge Drell, the state entities have "no bargaining power in the matter." Although the Executive Order expressly excludes grants and does not apply to existing government contracts, Judge Drell found the government's request to modify such non-covered contracts "a heavy-handed sign-and-return proposition" for the university. (Quote has been edited for clarity.)

We will continue to keep you informed of legal developments regarding the contractor vaccine requirements.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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