Blocked: Federal Court Enjoins Government From Enforcing Contractor Vaccine Mandate In 3 States

• Published date: 03 December 2021
• Subject Matter: Employment and HR, Government, Public Sector, Health & Safety, Government Contracts, Procurement & PPP
• Law Firm: Holland & Knight
• Author: Mr Jeremy D. Burkhart, Timothy Taylor, Christian B. Nagel and Kelsey M. Hayes

Highlights

• A judge in the U.S. District Court for the Eastern District of Kentucky on Nov. 30, 2021, issued a preliminary injunction, halting the government's enforcement of the federal contractor vaccine mandate on federal contractors and subcontractors in Kentucky, Ohio and Tennessee.
• The judge addressed the narrow question of whether President Joe Biden could use his congressionally delegated authority to manage federal procurement to impose vaccines on the employees of federal contractors and subcontractors.
• This vaccine mandate requirement is now "on hold" for contractors and subcontractors in Kentucky, Ohio and Tennessee. It is expected that the government will appeal the judge's order to the U.S. Court of Appeals for the Sixth Circuit.

U.S. District Court Judge Gregory Van Tatenhove of the Eastern District of Kentucky on Nov. 30, 2021, issued a preliminary injunction, halting the government's enforcement of the federal contractor vaccine mandate on federal contractors and subcontractors in Kentucky, Ohio and Tennessee.

In deciding whether to issue the preliminary injunction, the judge addressed the narrow question of whether President Joe Biden could use his congressionally delegated authority to manage federal procurement to impose vaccines on the employees of federal contractors and subcontractors. "In all likelihood, the answer to that question is no," the judge said.

As discussed in a previous Holland & Knight alert, the federal contractor vaccine mandate stems from Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, which mandated the creation of a Federal Acquisition Regulation (FAR) clause requiring federal contractors and subcontractors to follow guidance published by the Safer Federal Workforce Task Force. The Task Force's guidance, as amended, requires covered federal contractor and subcontractor employees to be "fully vaccinated" no later than Jan. 18, 2022 (meaning employees must receive either the single-dose Johnson & Johnson vaccine or the second dose of the Pfizer or Moderna vaccine by Jan. 4, 2022). This requirement is now "on hold" for contractors and subcontractors in Kentucky, Ohio and Tennessee.

The District Court Opinion

The judge issued the opinion in a lawsuit filed in early November by the Commonwealth of Kentucky, State of Ohio, State of Tennessee and two sheriff plaintiffs, suing in their official capacities as sheriffs for local counties. He concluded that the plaintiffs were...