WHAT DOES THE APPELLATE COURT’S VACCINATION RULING REALLY MEAN?

The bottom line on the 11th US Appellate Court’s decision on the contract vaccine mandate issue issued last week is that nothing is likely to change anytime soon.  The Court essentially issued a split decision.  On one hand they upheld the contention of the Associated Builders and Contractors that President Biden made overly broad use of the Procurement Act when trying to mandate that all federal contractors be vaccinated against COVID 19.  On the other, they said that the district court judge overstepped his authority in issuing a nationwide ban on imposing the mandate.  Regardless, 27 states are still covered by various court actions prohibiting enforcement of the mandate.  That makes it highly unlikely that the Office of Management and Budget will be able to move forward with enforcement.  A mish-mash of where, and on what contracts, the mandate would potentially be enforceable would create an absolute nightmare for both government and industry.  It is much more likely that the final resolution on the vaccine mandate issue will have to be settled by the US Supreme Court.  There is currently case on this issue before the Court, however, meaning that it could be years before any final legal action is taken.  It is also now possible, depending on the outcome of the 2024 presidential election, that the executive order implementing the mandate could be overturned before any final judicial action.  In the meantime, COVID 19 had generally been declassified as a public health emergency and OMB has moved on to other ways in which they can inflict pain on the acquisition process.  Contractors should absolutely keep an eye on this situation, but the issue should in no way distract from end of fiscal year business efforts.