Richard Arnholt Provides Insight on Suspension of for Government Contractor Vaccine Mandate Enforcement

September 7, 2022
Law360, EHS Today

Bass, Berry & Sims attorney Richard Arnholt provided insight for an article in Law360 on the announcement by the Biden administration to suspend the enforcement of the  government contractor vaccine mandate. In August, the Eleventh Circuit upheld a preliminary injunction of the COVID-19 vaccine mandate for government contracts but limited the scope of that nationwide injunction to just the plaintiffs. There are currently five other pending challenges to the mandate in different jurisdictions.

Given the multiple injunctions that together cover over two dozen states as well as members of Associated Builders and Contractors, it would have been exceedingly complicated for the government to enforce the mandate despite the fact that the nationwide injunction is no longer in place.  For that reason, on August 31, the federal government announced it will not take any action to enforce the contractor mandate for the time being.

“I think the writing’s on the wall here … this [is] an incredibly expansive and invasive executive order, which potentially requires the vaccination of employees who had nothing to do with government contracts — they simply worked on the same campus,” Richard told Law360.

The challenges to the vaccine mandate have called into question the validity of other federal policies related to executive orders. “If the government ultimately decides not to appeal to the Supreme Court — or it appeals and loses — and it wants to continue to try to assert the broad authority that presidents have previously asserted under the Procurement Act, its only option may be to go to Congress for a legislative fix. But lawmakers have long been concerned about ceding too much authority to the executive branch, and the administration may have a hard time getting a majority of senators to enshrine into law the type of authority it needs to enforce a vaccine mandate,” Richard said.

The full article, “Feds’ Vax Mandate Loss Imperils Other Procurement Policies,” was published by Law360 on September 2 and is available online.

Richard wrote about this topic for the firm’s GovCon & Trade blog in posts titled, “Government to Withhold Enforcement of the Vaccine Mandate. For Now” (September 1, 2022) and “The Contractor Vaccine Mandate is Back?” (August 30, 2022). Content from these blog posts was included in the article, “Regulatory Update: Government Contractor Vaccine Mandate Ends,” that was published by EHS Today on September 12 and is available online (subscription required).