Coronavirus Roundup: The Latest on the Federal Contractors Vaccine Mandate Challenge

Last Friday, the U.S. Court of Appeals for the 11th Circuit held oral arguments for one of the challenges to the vaccine mandate for covered federal contractors. Government Executive spoke with several contracting experts to get their insight on what happened. 

“The 11th Circuit acknowledged that the Biden administration has felt the impact of contracting delays due to COVID-19, but it did not expressly state that this meant that the administration had the authority to impose a COVID-19 vaccine mandate on federal contractor employees,” Tenley Carp, partner at the law firm Arnall Golden Gregory LLP and leader of its government contracts practice, told Government Executive. “In fact, one of the three judges expressly stated that it was ‘doubtful’ that the government had a strong enough case to overturn the lower court’s ruling which halted the COVID-19 vaccine mandate for federal contractor employees.”

She thinks the ruling––which she estimates to come out in about a month, could be 2-1–– like the 6th Circuit ruling on another vaccine mandate challenge earlier this year. Carp said this case could go to the Supreme Court and while it could overrule the 11th Circuit if the 11th Circuit rules in favor of the government, she doesn’t think it’ll be probable. 

Fred Levy, partner in the law firm Covington & Burling LLP’s government contracts practice group, said, “it’s really anybody’s guess at this point and the 11th Circuit is just one circuit that’s going to rule on this.” If there are seemingly conflicting orders between circuits, then you have to examine the scope of the orders, he said. Levy thinks this case will go up to the Supreme Court. 

Last week, an appeals court reinstated the vaccine mandate for federal employees, but Levy thinks that is “completely separate” and won’t have an impact on the contractor challenges. Here are some of the other recent headlines you might have missed. 

Rep. James Clyburn, D-S.C., chair of the House Select Subcommittee on the Coronavirus Crisis, is seeking documents and interviews from two senior health officials in the Trump administration: Dr. Brett Giroir, the former assistant secretary for health who served as the testing czar, and Dr. Robert Kadlec, the former assistant secretary for preparedness and response. The letter to Giroir “details the following new evidence obtained by the Select Subcommittee revealing that [he] led the effort to weaken testing guidance in August 2020 to assert—contrary to the prevailing scientific consensus voiced by multiple senior public health officials—that individuals exposed to the coronavirus did not necessarily need to get a test,” said a press release from April 10. 

The letter to Kadlec “requests information about the widely reported failure to adequately prioritize scaling up the nation’s supply of personal protective equipment in the early stages of the pandemic, the decision to award Emergent BioSolutions, Inc., a $628 million government contract for vaccine production, and the removal of Dr. Rick Bright from his government position for his refusal to push the false narrative that hydroxychloroquine was effective,” said the press release. 

The White House chose Lisa Barclay, most recently deputy general counsel at the Health and Human Services Department, as the number two COVID official who will serve under Dr. Ashish Jha, the new COVID-19 response coordinator who replaced Jeff Zients. Zients and his deputy recently stepped down from their positions. 

The Transportation Security Administration announced on Wednesday, it has extended its mask mandate through May 3 following the recommendation of the  Centers for Disease Control and Prevention, which comes as the BA.2 subvariant now comprises more than 85% of COVID-19 in the United States and since early April there’s been increases in cases in the seven-day moving average. 

The Food and Drug Administration issued an emergency use authorization on Thursday for the first COVID breath test. “The test can be performed in environments where the patient specimen is both collected and analyzed, such as doctor’s offices, hospitals and mobile testing sites, using an instrument about the size of a piece of carry-on luggage,” the FDA’s announcement stated. “The test is performed by a qualified, trained operator under the supervision of a health care provider licensed or authorized by state law to prescribe tests and can provide results in less than three minutes.”

Pfizer/BioNTech’s booster shot for children ages five through 11 produced a “high immune response” and the companies plan to submit this data in the coming days to the FDA, the companies announced on Thursday, following a small study of 140 children. 

A new report looks at suspensions and departments––actions to prevent the government from doing business with harmful entities or individuals––in fiscal 2020, which was during the first year of the pandemic. Compared to fiscal 2019, there was an increase governmentwide in the debarments despite the pandemic, however, there was a decrease in suspension and proposed departments partially due to mail service and court proceeding delays as well as travel restrictions, said the report from the Interagency Suspension and Debarment Committee on Federal Agency Suspension and Debarment Activities. However, 13 agencies reported they had increases in the number of suspensions. Additionally, “governmentwide use of alternatives to suspension or debarment exceeded the reported average for 12 years,” said the report. 

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