A United States District Court in Kentucky granted a preliminary injunction preventing the federal contractor mandate from taking effect in three states. The federal contractor mandate requires all prime and subcontractors at any tier with the federal government to be fully vaccinated by January 18, 2022. The Court explained that COVID vaccines are effective, and there are circumstances where the government could require citizen vaccinations. However, “in all likelihood,” President Biden could not use his “authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors.” The Court explained that there was no “close nexus” between the president’s procurement power to promote the “economy and efficiency” and the public health measure of a vaccine mandate. While the Court’s decision was a victory for Ohio, Kentucky, and Tennessee, the three states bringing suit, the Court did not purport to issue a national injunction against the mandate. Thus, covered contractors outside those three states are well-advised to continue on course, absent a national injunction.
The world of vaccine mandates experienced yet another shift yesterday. In a separate case, another United States District Court halted the federal vaccine mandate applicable to millions of workers in Medicare- and Medicaid-certified health care facilities, preventing the mandate from going into effect in ten states. Sherman & Howard published a blog detailing the implications of that decision.
While the above vaccine mandates are significant, another federal government mandate has dominated the news cycle over the past week. Indeed, even the Court granting the preliminary injunction on the federal contractor mandate opined on the heavily-scrutinized OSHA Emergency Temporary Standard (ETS). The ETS requires employers with 100 or more employees to, among other things, implement either a mandatory vaccine policy or a vaccine or test policy. The 5th Circuit granted an emergency temporary stay on the ETS, prompting OSHA to announce it has “temporarily suspended activities related to the implementation and enforcement of the ETS.” However, the ETS’ fate will ultimately be determined in the 6th Circuit consolidated multidistrict litigation.
Suffice it to say that yesterday was a big day for employers and their counsel.