By Marc Antonetti and Scott McIntyre
On Nov. 30, 2021, the Eastern District of Kentucky enjoined President Biden’s federal contractor vaccine mandate in Commonwealth of Kentucky v. Joseph R. Biden. Under Executive Order 14042, covered contract employees and employees working at covered contractor workplaces are required to receive their final vaccine shot by Jan. 4, 2022. Unlike the currently stayed federal OSHA vaccine mandate, no testing option is available under the federal contractor vaccine mandate.
In its decision to enjoin the enforcement of the federal contractor vaccine mandate with respect to Kentucky, Ohio and Tennessee, Judge Gregory Van Tatenhove emphasized, in a matter of first impression, that the mandate exceeded the president’s authority delegated by Congress under the procurement statute. The court was careful to note its view that vaccines are effective, but it essentially concluded that the desired ends do not justify the means with respect to the federal contractor vaccine mandate.
The court also criticized the application of the federal contractor vaccine mandate to “employees of federal contractors and subcontractors who work entirely from home and are not at risk of spreading Covid-19 to others” and lamented the potential effect on competitive contracting. More importantly, the court expressed concern “that the vaccine mandate intrudes on an area that is traditionally reserved to states,” as health and safety matters historically have been a matter of local concern.
As a result of this reasoning, the court held that, at least at this preliminary stage, the three states were likely to prevail on the merits and that irreparable harm would follow in the absence of preliminary relief. The court acknowledged that “individuals in every state in the country are affected” by the federal contractor vaccine mandate but declined to impose a nationwide injunction. Thus, for now, the federal contractor mandate is stayed in three states – Ohio, Kentucky and Tennessee.
The court’s limited ruling leaves open the possibility for conflicting standards to be applied across the country. For example, as of this writing, federal contractors in Cleveland, Louisville and Memphis would not be subject to the mandate under the district court’s ruling, while federal contractors in Pittsburgh, Evansville or St. Louis would be covered and subject to the mandate’s requirements.
Further, this patchwork of judicial rulings, combined with the conflicting requirements of federal vaccine mandates, state laws and local directives, leaves federal contractors in a difficult position. While further clarification may yet be on the way, as other states have mounted legal challenges, there is no telling if and when that will happen. Indeed, on Nov. 23, 2021, one Mississippi federal district court denied relief, on the particular facts of that case, to a number of Mississippi State University employees who challenged the federal contractor vaccine mandate in Hollis v. Biden, concluding that the employees lacked standing to sue.
Federal contractor employers should reach out to their counsel to better understand how these competing concerns might apply to their workplaces and what they can do now to navigate and mitigate this difficult legal terrain.