On November 30, 2021, the U.S. District Court for the Eastern District of Kentucky granted a preliminary injunction blocking the federal government from moving forward with the COVID-19 protocols for federal contractors issued by the Safer Federal Workforce Task Force (Task Force) and promulgated by President Biden in Executive Order 14042. Under the guidance issued by the Task Force, employees of covered federal contractors and those working “in connection with” federal contracts must be fully vaccinated by January 18, 2022.
This case, brought by Kentucky, Ohio, and Tennessee, is one of many challenges that have been brought against the vaccine mandate in federal courts around the country. However, this decision prohibits enforcement of the vaccine mandate only for covered federal contractors and subcontractors in covered contracts in Kentucky, Ohio, and Tennessee.
In the order granting the preliminary injunction, the court reasoned that the President does not have the authority to mandate vaccination of federal contractors under the Federal Property and Administrative Services Act because the mandate is not related to the statute’s goal of promoting economy and efficiency in federal procurement. In addition, the court held that, by excluding unvaccinated contractors from government contracts, the mandate would violate the Competition in Contracting Act. The court further determined that granting authority to the President to mandate vaccination would likely violate the nondelegation doctrine. Moreover, the court expressed concern that the mandate encroaches on an area traditionally reserved to the states in violation of the Tenth Amendment. Notwithstanding the substantive and constitutional concerns, the court determined that the federal government did not violate the Administrative Procedures Act or other procedural rules in promulgating the guidance as well as promulgating the subsequent Federal Register notice formally seeking notice and comment on the mandate.
Overall, the decision represents a significant setback for the government as it relates to the federal contractor COVID-19 protocols mandate. In reaching its decision, the court indicated that it was troubled by the broad nature of the mandate as well as the government’s attempts to apply the clause to not only future contracts, as required under Executive Order 14042, but also existing contracts. The court’s decision to not impose the injunction on a nationwide basis was a unique sign of restraint, given that many recent decisions striking down federal rules have imposed broader injunctions. Nonetheless, the decision perhaps proves a blueprint for the cases now pending in district courts in St. Louis, Georgia, Florida, and Texas. The decision, however, does not detail how the limited injunction would operate. Whether the mandate applies to contracts performed in the three states or applies to contractors located in those states is not clear and presents compliance issues for contractors.
One not-so-tangential point: The Kentucky district court is in the Sixth Circuit, which is the current venue of the Occupational Safety and Health Administration’s Emergency Temporary Standard litigation. It remains to be seen whether this decision will resonate beyond the federal contractor mandate and provide a roadmap for the relevant appellate circuit court.
Employers should continue to monitor legal developments and consult with experienced legal counsel regarding the status of the federal contractor mandate, particularly in areas outside the scope of this preliminary injunction.