On November 30, 2021, the U.S. District Court for the Eastern District of Kentucky threw a wrench into the federal government’s efforts to enforce Executive Order 14042’s COVID-19 vaccination mandate against federal government contractors by issuing a preliminary injunction barring the government from enforcing the mandate in Tennessee, Ohio, and Kentucky.  The court’s order is the latest development that government contractors must address in attempting to comply with Executive Order 14042 while minimizing litigation risks from employees who are unable or unwilling to become fully vaccinated.

The Eastern District of Kentucky litigation challenging the federal contractor vaccination mandate was brought by the States of Tennessee, Ohio, and Kentucky, as well as two individual plaintiffs.  In granting the preliminary injunction requested by the States, the court relied upon three grounds to find that the Biden Administration exceeded its authority in issuing Executive Order 14042.  First, the court determined that Congress’s grant of authority under the Federal Property and Administrative Services Act for the President to promote “economy and efficiency in federal contracting” did not authorize the imposition of a vaccination mandate on federal government contractors, because the mandate is not closely tied to the statute’s objectives.  The court noted that if FPASA did provide the President the authority to mandate vaccination, such a grant of authority would violate the constitutional nondelegation principle.  Second, the court ruled that the vaccination mandate violated the Competition in Contracting Act, as contractors who “represent the best value to the government,” but do not follow the vaccine mandate, would be barred from competing for government contracts.  Finally, the court found the vaccine mandate to be a federal intrusion on powers reserved to the States, violating the Tenth Amendment of the Constitution.

The court’s ruling applies only to prohibit enforcement of the vaccination mandate against contractors and subcontractors on covered contracts in Tennessee, Ohio, and Kentucky, rather than nationwide.  We expect that the government will appeal the preliminary injunction.  The appeal will be heard by the U.S. Court of Appeals for the Sixth Circuit, which is also hearing the challenges to OSHA’s Emergency Temporary Standard requiring COVID-19 vaccination or testing for employers with more than 100 employees. 

The Safer Federal Workforce Task Force guidance implementing Executive Order 14042’s mandate did not require that covered employees become fully vaccinated until January 18, 2022, which means that the employee receive the final shot in the applicable vaccination series by January 4, 2022.  Unless and until the mandate is enjoined in other jurisdictions, federal contractors outside of Tennessee, Ohio, and Kentucky should move forward in ensuring that their relevant employees are fully vaccinated by the deadline, as an employee receiving the Moderna or Pfizer vaccine will need to receive the first shot in early December to stay on track to become fully vaccinated by January 18, 2022.  Contractors in the three states covered by the injunction should also continue preparations in order to avoid being caught off-guard if the Eastern District of Kentucky’s injunction is stayed or reversed.