[co-author: Abbegael Giunta]
On November 30, 2021, a federal district court in Kentucky issued a preliminary injunction pausing enforcement of the federal government’s COVID-19 vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee. See Commonwealth of Kentucky, et al. v. Biden, No. 3:21-cv-00055 (E.D. KY, Nov. 30, 2021). The decision largely focused on whether President Biden exceeded his authority when he issued Executive Order 14042, which mandated compliance with guidance issued by the Safer Federal Workforce Task Force regarding COVID-19 safeguards for federal contractors and subcontractors. The Court held that he did.
The authority to manage federal procurement is delegated to the President through the Federal Property and Administrative Services Act (FPASA). Using FPASA, President Biden promulgated Executive Order 14042 and directed that the Task Force issue its guidance mandating COVID-19 vaccinations for those who contract with the federal government. However, the Court noted that the delegation is not a blank check for the President to “fill in at his will” and instead that there must exist a close nexus between the Order and the objectives of FPASA – increasing economy and efficiency in procurement. Here, the Court made clear that it believes the link is tenuous at best.
The Court likened the vaccine mandate for federal contractors to a refusal to contract with contractors who employ individuals over a certain BMI, or with businesses who work in crowded indoor office spaces. All are related to decreasing risk related to COVID-19, but they are actually public health regulations, not efforts focused on increasing economy and efficiency in procurement. Accordingly, the Court rejected the government’s position that a close nexus exists between economy and efficiency in procurement and the vaccine mandate.
The Court also noted other potential issues in the government’s case, including that the vaccine mandate may exclude certain contractors from bidding on jobs in violation of the Competition in Contract Act, that mandating vaccination is a decision that should be left to Congress (or, more appropriately, the States) that it violated the nondelegation doctrine, and that the mandate may have intruded into an area reserved for the States by the Tenth Amendment.
Holding that the plaintiffs are likely to succeed on their case, and that contractors in the relevant states would be irreparably harmed without an injunction, the Court enjoined the federal government from enforcing its vaccine mandate. However, the Court declined to issue a nationwide injunction and instead focused on the three states who brought the suit.
The Commonwealth of Kentucky case will proceed, and an appeal is likely. Upon appeal, the District Court’s decision would be heard by the Sixth Circuit Court of Appeals. As noted in our November 17, 2021 blog article, the Sixth Circuit also was selected by lottery to hear the Multidistrict Litigation regarding the legal challenges to the OSHA Emergency Temporary Standard for larger private-sector employers.
For now, covered contractors in Pennsylvania and all states other than Ohio, Kentucky and Tennessee should continue with their plans to comply with EO 14042 and the Task Force Guidance, which currently has a January 4, 2022 deadline for employees of covered federal contractors and subcontractors to be vaccinated. However, challenges to this vaccine mandate will continue to work their way through the courts for the near future. We will continue to monitor for further developments and will provide updates as events dictate. For more information on COVID-19 vaccine requirements or the related legal challenges, contact any member of the McNees Labor & Employment Group.