A federal judge has blocked President Biden’s mandate requiring federal contractors and subcontractors in Ohio, Kentucky and Tennessee to get COVID-19 vaccines. On Tuesday, Nov. 30, 2021, United States District Judge Gregory F. Van Tatenhove of the Eastern District of Kentucky granted a preliminary injunction preventing the COVID-19 vaccine mandate for federal contractors from taking effect in the three states, which had challenged the mandate earlier this month in Commonwealth of Kentucky et al. v. Biden et al. as contrary to procedure, arbitrary and capricious, and a violation of the United States Constitution.
Judge Rules Vaccine Mandate Exceeds Scope of Biden’s Authority
Judge Van Tatenhove stated in his opinion and order that the narrow issue before him was whether President Biden could use the congressionally delegated authority to manage the federal procurement of goods and services to mandate vaccinations on the employees of federal contractors. Under the Federal Property and Administrative Services Act, the President has broad authority to manage federal procurement, but as Judge Van Tatenhove noted, this authority is not absolute. While Judge Van Tatenhove explained that vaccines are effective and the government can, under some circumstances and to some degree, mandate vaccinations, he ultimately concluded that the COVID-19 vaccine mandate for federal contractors exceeded the scope of President Biden’s federal procurement authority.
COVID Vaccine Mandate for Federal Contractors Background
The COVID-19 vaccine mandate for federal contractors, which has been challenged in several other states, is set to take effect on Jan. 4, 2022. President Biden signed Executive Order 14042 on Sept. 9, 2021, directing the Safer Federal Workforce Task Force to implement COVID-19 safety measures and issue safety guidance for federal contractors and subcontractors.
On Sept. 24, 2021, the Task Force issued its guidance, which imposes a vaccine mandate on covered contractors and subcontractors. All employees under covered contracts must be fully vaccinated by Jan. 18, 2022, meaning two weeks after receiving the second dose of either the Moderna or Pfizer-BioNTech vaccine or the single dose of the Johnson & Johnson vaccine. Booster shots, which are becoming increasingly prevalent in light of the new Omicron variant, are not required to be considered fully vaccinated.
In addition to the vaccine mandate, the guidance requires compliance with CDC masking and physical distancing requirements as well as the designation of a person to coordinate implementation and compliance with COVID-19 workplace safety measures. Unlike OSHA’s regulations governing employers with 100 or more employees, the COVID-19 vaccine mandate for federal contractors does not permit a COVID-19 testing alternative.
Challenges to Vaccine Mandate
This preliminary injunction order comes just hours before the Centers for Medicare and Medicaid Services (CMS) vaccine mandate for healthcare workers was stayed nationwide by a federal judge in the Western District of Louisiana. The CMS vaccine mandate had already been blocked in ten states by a federal judge in the Eastern District of Missouri on Nov. 29, 2021.
As Jan. 4, 2022 quickly approaches, the fate of the COVID-19 vaccine mandate for federal contractors remains uncertain. KJK will continue to closely monitor any changes or updates with the vaccine mandates. For more information or to discuss further, please contact Rob Gilmore at rsg@kjk.com or 216.736.7240.