Latest update in series:
End of an Era: White House Ends Many Federal COVID-19 Vaccine Requirements (May 3, 2023)
Eleventh Circuit Narrows Scope of Contractor Vaccine Mandate Injunction (August 28, 2022)
What’s Next for Employers After the Supreme Court’s Vaccine Rulings? (January 14, 2022)
Related webinar replays:
OSHA ETS Employee COVID-19 Vaccination and Testing Mandates New Requirements, Tips and Traps for Large Employers (November 10, 2021)
COVID-19 Employee Vaccine and Testing Mandates New Requirements for Large Employers, Federal Contractors and Healthcare Organizations (September 16, 2021)
On Nov. 30, 2021, the U.S. District Court for the Eastern District of Kentucky granted a motion for preliminary injunction in Commonwealth of Kentucky, et al. v. Biden, et al., finding that President Biden’s broad authority over federal procurement likely does not extend to the power to mandate COVID-19 vaccinations for the employees of federal contractors and subcontractors. As a result of this preliminary injunction, enforcement of the federal contractor and subcontractor vaccine mandate is temporarily halted in the states of Kentucky, Ohio, and Tennessee.
It is important to note that while Judge Gregory F. Van Tatenhove’s decision temporarily blocks enforcement of the federal contractor vaccine mandate in the three states of Kentucky, Ohio, and Tennessee, the mandate nonetheless remains in force and litigation is ongoing across the country.
President Biden’s federal contractor vaccine mandate is a product of Executive Order 14042 (EO), released on Sept. 9, 2021, which called for the White House’s Safer Federal Workforce Task Force to create mandatory COVID-19 safety guidance for all federal contractor or subcontractor workplace locations. The EO requires the director of the Office of Management and Budget (OMB) to approve the guidance and determine that it would “promote economy and efficiency in Federal contracting” as required by the Federal Property and Administrative Services Act (FPASA).
On Sept. 24, the Task Force issued its guidance, which included a contractor mandate that has since been expanded to require substantial numbers of employees of many federal contractors to be vaccinated. The director of the OMB determined the mandate “will improve economy and efficiency by reducing absenteeism and decreasing labor costs for contractors and subcontractors working on or in connection with a Federal Government contract.”
Judge Van Tatenhove’s opinion issued on Nov. 30, granting plaintiffs’ motion for preliminary injunction, observed that the FPASA requires a “close nexus” between the vaccine mandate and the goal of promoting “economy and efficiency” in the federal contracting marketplace. Pursuant to Judge Van Tatenhove’s opinion, “it strains credulity that Congress intended the FPASA, a procurement statute, to be the basis for promulgating a public health measure such as mandatory vaccination.” The court accordingly noted that the federal government “cannot point to a single instance when the [FPASA] has been used to promulgate such a wide and sweeping public health regulation as mandatory vaccination for all federal contractors and subcontractors.”
Judge Van Tatenhove also found that the mandate is likely to violate the Competition in Contracting Act, which requires federal agencies to provide “full and open competition through the use of competitive procedures” in procurement. The court found that the mandate could cause the government to exclude from consideration contractors who provide the best value, since noncompliant contractors “would be precluded from effectively competing for government contracts.”
The court also cited the U.S. Court of Appeals for the Fifth Circuit’s recent decision halting the Occupational Safety and Health Administration’s (OSHA) vaccine mandate for large private employers in BST Holdings, LLC v. OSHA as providing a basis for the court to find that the contractor mandate’s promulgation raises nondelegation doctrine concerns. The court noted that this doctrine “bars Congress from transferring its legislative power to another branch of Government.” Judge Van Tatenhove’s decision called on federal circuit courts to “further develop the contours of the nondelegation doctrine, particularly in light of the pandemic.”
Notably, the court rejected the plaintiffs’ arguments that the OMB director’s determination violates the Administrative Procedure Act (APA), explaining that the OMB director promulgated an updated determination on Nov. 16, 2021, that “included a more thorough and robust economy-and-efficiency analysis.” Although the plaintiffs’ argument on this ground failed at this stage, contractors should observe how other courts rule on plaintiffs’ APA challenges to the OMB director’s determination and whether the plaintiffs in this case raise additional arguments in fuller briefing on the merits.
Judge Van Tatenhove declined to issue a nationwide injunction against the federal mandate, holding that the preliminary injunction should cover only the three plaintiff states of Kentucky, Ohio and Tennessee. The federal government is defending the contractor mandate against more than 20 states in federal courts across the country. If other jurisdictions find for the plaintiffs and implement similarly narrow injunctions, the contractor mandate could exist for months in a patchwork fashion across the country as litigation challenging the mandate progresses.
For questions about compliance with the federal contractor vaccine mandate or ongoing litigation challenging the mandate, please contact the authors of this article, your McGuireWoods contact, or a member of the firm’s affirmative action, federal contracting, labor and employment, or COVID-19 response teams.