Court blocks federal contractor COVID-19 vaccine mandate in three states (but not Pennsylvania) | McNees Wallace & Nurick LLC – Community News
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Court blocks federal contractor COVID-19 vaccine mandate in three states (but not Pennsylvania) | McNees Wallace & Nurick LLC

[co-author: Abbegael Giunta]

On November 30, 2021, a federal court in Kentucky issued a preliminary injunction to suspend enforcement of the federal government’s COVID-19 vaccine mandate for federal contractors and subcontractors on all covered contracts in Kentucky, Ohio and Tennessee. See Commonwealth of Kentucky, et al. v. Biden, no. 3:21-cv-00055 (ED KY, Nov. 30, 2021). The decision largely focused on whether President Biden overstepped his authority when he issued Executive Order 14042, which mandated adherence to the Safer Federal Workforce Task Force guidelines regarding COVID-19 safeguards for federal contractors and subcontractors. The court ruled so.

The power to administer federal procurement is delegated to the president through the Federal Property and Administrative Services Act (FPASA). Using FPASA, President Biden issued Executive Order 14042 and ordered the Task Force to issue its guidelines mandating COVID-19 vaccinations for those under 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 be a close connection between the Order and the objectives of FPASA – increasing the economy and efficiency in tenders. Here the Court made it clear that it believes the link is weak at best.

The Court compared the vaccine mandate for federal contractors to a refusal to contract with contractors who employ individuals of a certain BMI, or with companies that work in crowded office spaces. They’re all about reducing the risk associated with COVID-19, but they’re actually public health regulations, not efforts aimed at increasing thrift and efficiency in procurement. Accordingly, the Court rejected the government’s view that there is a close relationship between thrift 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 for jobs that violate the Competition in Contract Act, and that mandating vaccination is a decision up to the Congress must be left (or, more appropriately, the States) that it has violated the non-delegation doctrine and that the mandate may have invaded an area reserved for the States by the Tenth Amendment.

Believing that the plaintiffs are likely to succeed in their case and that contractors in the relevant states will be irreparably harmed without an injunction, the Court banned the federal government from enforcing its vaccine mandate. However, the Court declined to issue a nationwide injunction and instead focused on the three states that filed the lawsuit.

The Commonwealth of Kentucky the case will go ahead, and an appeal is likely. On appeal, the District Court’s decision would be heard by the Sixth Circuit Court of Appeals. As noted in our November 17, 2021 blog entry, the Sixth Circuit was also raffled off to hear the Multidistrict Litigation regarding the legal challenges of 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 must continue with their plans to comply with EO 14042 and the Task Force Guidance, which currently has a January 4, 2022 deadline for covered federal contractor employees and subcontractors. to be vaccinated. However, the challenges to this vaccine mandate will continue to work through the courts for the foreseeable future. We will continue to monitor for further developments and will provide updates as events require. For more information about COVID-19 vaccine requirements or the related legal challenges, please contact a member of the McNees Labor & Employment Group.