Federal Court Enjoins Enforcement of Federal Contractor Vaccination Mandate in Ohio, Kentucky and Tennessee

Government Contracts Update

Date: December 03, 2021

Key Notes:

  • A federal court has enjoined the government’s enforcement of the federal contractor vaccination mandate for government contracts performed in Ohio, Kentucky and Tennessee.
  • This is the first ruling in a legal challenge to the mandate, and several similar challenges remain pending before other courts, which could impact the scope of the vaccination mandate.
  • Contractors should ensure that they understand the scope of the court’s injunction and how it impacts their performance of covered contracts in the three states, particularly where contractors rely upon personnel and operations in other states to perform a contract.

In the first significant ruling among several judicial challenges to the Biden administration’s Executive Order 14042 directing federal contractors to ensure that employees working on or in connection with government contracts are vaccinated against COVID-19, a federal court has enjoined enforcement of the vaccination mandate in three states. While the injunction is limited to Ohio, Kentucky and Tennessee, similar challenges are pending in several other states, including Texas, Oklahoma, Georgia, Arizona and Florida. With the executive order’s current January 18, 2022 deadline for compliance with the vaccination requirement looming, it is likely that additional judicial decisions will pose challenges for contractors seeking to determine their compliance obligations, particularly those with operations spanning multiple states.

In his opinion and order issued November 30, Judge Gregory Van Tatenhove of the U.S. District Court for the Eastern District of Kentucky held that the plaintiffs (the three states and two Ohio sheriffs) were likely to succeed in their challenge to the administration’s ability to use its procurement powers to mandate that certain federal contractors and subcontractors require their employees to receive the COVID-19 vaccine. The court focused on the president’s powers under the Federal Property and Administrative Services Act (FPASA), noting that although Congress had delegated the president broad powers under the act to issue executive orders, such power has limits and requires that any executive order be closely aligned with the act’s objectives. The court held that the president exceeded his authority, observing that “it strains credulity that Congress intended FPASA, a procurement statute, to be the basis for promulgating a public health measure such as mandatory vaccination.” The court similarly found that the president lacked authority under other procurement laws (including the Competition in Contracting Act) to issue the vaccination mandate to federal contractors.

Despite finding that the president exceeded his statutory authority, the court nevertheless ruled that the administration, and specifically the FAR Council and Office of Management and Budget, followed the appropriate procedural requirements in imposing the vaccination mandate. In doing so, the court rejected the plaintiffs’ argument that the Biden administration’s actions in promulgating the mandate were either arbitrary or capricious under the Administrative Procedure Act.

The court also considered the scope of its injunction against the mandate. While noting that the plaintiffs had presented evidence relating to Ohio, Kentucky and Tennessee, the court observed that its ruling “rests on facts that are universally present in the federal government’s dealings with contractors and subcontractors in all of the states.” It ultimately determined to limit the injunction to the parties bringing the challenge, and therefore enjoined the federal government from enforcing the mandate “for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.”

While the court order provides immediate relief from complying with the January 18, 2022 vaccination deadline to federal contractors and subcontractors performing government contracts in Ohio, Kentucky and Tennessee, several open issues remain with respect to enforcing the mandate and contractors’ corresponding compliance obligations. As noted previously, similar challenges are pending in other states, meaning that the number of states and federal contractors exempt from compliance with the mandate may grow in the next few weeks.

The order also raises questions for contractors who perform contracts in the three states but rely upon employees or operations in other states to provide support for those affected contracts. It is unclear whether the Safer Federal Workforce Task Force, which has overseen implementation of the administration’s executive order, will address the injunction and its impacts upon contractors performing government contracts. However, at least one federal agency – the General Services Administration – has already announced that it will not take any action to enforce the mandate on contracts “being performed in whole or in part, in Kentucky, Ohio and Tennessee.”

In light of the court order, contractors and subcontractors performing government contracts in these three states are at least temporarily relieved from their obligation to comply with the January 18, 2022 employee vaccination deadline. However, the order is subject to appeal to the U.S. Court of Appeals for the Sixth Circuit, the same court considering legal challenges to a recently issued OSHA Emergency Temporary Standard, so contractors and subcontractors may not wish to completely abandon their efforts to comply with the mandate in Ohio, Kentucky and Tennessee to avoid being caught by surprise if the court order is stayed or overturned by the Sixth Circuit.

Our Government Contracts and Labor & Employment groups are monitoring the pending legal challenges and will provide further updates as additional developments occur. Our lawyers can also provide guidance and assistance to contractors and subcontractors who are trying to navigate their COVID-19 compliance obligations across jurisdictions.

FOR MORE INFORMATION

For more information, please contact:

Jessica V. Haire
202.973.2778
Jessica.Haire@ThompsonHine.com

Tom Mason
202.263.4168
Thomas.Mason@ThompsonHine.com

Francis E. (Chip) Purcell, Jr.
202.263.4118
Chip.Purcell@ThompsonHine.com

Ryan S. Spiegel
202.973.2742
Ryan.Spiegel@ThompsonHine.com

Joseph R. Berger
202.263.4193
Joseph.Berger@ThompsonHine.com

Matthew R. Kissling
216.566.5586
Matthew.Kissling@ThompsonHine.com

Mona Adabi
202.263.4147
Mona.Adabi@ThompsonHine.com

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