On December 7, 2021, in Georgia v. Biden, No. 1:21-cv-163, a federal judge in the United States District Court for the Southern District of Georgia issued a preliminary injunction barring enforcement of President Joe Biden’s vaccine mandate that applies to all federal contractors and subcontractors in covered contracts in any state or territory of the United States. This lawsuit was brought by governors and various agencies of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia.

On December 13th, the federal government appealed the district court’s injunction to the Eleventh Circuit Court of Appeals in Case No. 21-14269-F. The federal government also asked the Eleventh Circuit to stay the injunction issued by the district court, pending resolution of its appeal. If the federal government’s requested stay had been issued, the federal government could have proceeded with implementing the federal contractor vaccine mandate pending resolution of its appeal. 

On December 17th, a three judge panel of the Eleventh Circuit denied the federal government’s request for a stay of the district court’s injunction. The panel found that the government had “not established one of ‘the most critical’ factors— that it will be irreparably injured absent a stay.”

The three judge panel did expedite the federal government’s appeal, setting a briefing schedule that results in the final appeal brief being due no later than January 24, 2022. This decision by the Eleventh Circuit panel also suggests that if the federal contractor vaccine mandate survives the legal challenge and is found to be enforceable, the current January 18, 2022, deadline for compliance with the federal contractor vaccine mandate will have to be delayed until February or later, as late January or early February is the earliest the federal government’s appeal could be heard and decided. 

It is possible the federal government will seek an en banc review (i.e., review by a full panel of Eleventh Circuit judges versus the three judge panel assigned to the appeal) of the federal government’s motion to stay the district court’s injunction, and that the Eleventh Circuit may reverse the decision of the three judge panel. That is not a common occurrence, but it is a possibility. 

As we have noted earlier, given the legal challenge to the federal contractor vaccine mandate and the briefing schedule set by the Eleventh Circuit, it would make sense for federal contracting agencies to make preparations to comply with the vaccine mandate but not implement any specific provisions. Consider taking these steps:

• Develop policies and forms to use if the federal contractor vaccine is affirmed by the appellate courts, including collecting employees’ vaccine information;
• Delay requiring employee compliance with the federal contractor vaccine mandates you wait to see how the litigation, and the likely appeal, is resolved;
• Continue to inform employees about the status of the federal contractor vaccine mandate and the uncertainty as to its implementation;
• For those contracts that have had the federal contractor vaccine mandate clause added, inform your contracting officer of the injunction against enforcement of the federal contractor vaccine mandate; and 
• Actively monitor the Safer Federal Workforce Task Force for updated guidance regarding deadlines for compliance in light of the injunction. 

We will continue to update you on this matter as the appeal proceeds.