The Biden Administration announced yesterday that on May 11, 2023, it will end the COVID-19 vaccination mandate imposed on federal government contractors in 2021. The announcement further explained that COVID-19 vaccine requirements also will end for federal government employees and international air travelers. President Biden will issue an executive order, which will officially rescind the vaccination mandate for government contractors and employees effective May 11, 2023. Until then, the Safer Federal Workforce Task Force directs agencies not to implement or take any action to enforce vaccine mandates issued under Executive Orders 14042 and14043. Follow-on guidance will be issued after the executive order.
Although the announcement recognized that “vaccination remains one of the most important tools in advancing the health and safety of employees and promoting the efficiency of workplaces,” the Biden Administration found vaccine mandates “no longer necessary” in the current phase of the Administration’s response to the pandemic. On April 10, 2023, President Bident signed H.J. Res. 7 into law, which ended the national emergency related to the COVID-19 pandemic.
Although the executive branch has not enforced the vaccine mandate since 2021 due to multiple injunctions, the official end of it provides a welcome relief to government contractors who now have certainty that they will not have to further manage compliance regarding this contentious issue.
Moreover, with the contractor vaccine mandate ending on May 11, it appears that the multi-circuit litigation addressing the president’s authority under the Procurement Act will come to an end without review by the US Supreme Court. Three appellate courts have held that President Biden’s contractor vaccine mandate exceeded the executive branch’s authority under the Procurement Act,1 whereas the US Court of Appeals for the Ninth Circuit held just the opposite.2
1 Mayer Brown has issued previous Legal Updates regarding these appellate decisions available at: US Eleventh Circuit Affirms Injunction Against Federal Contractor Vaccine Mandates But Limits Previously Nationwide Scope and US Federal Contractor Vaccine Mandate Dealt Blows by 5th and 6th Circuits.