US Federal Court Preliminarily Enjoins Vaccine Mandate For Federal Contractors In KY, OH And TN

Published date06 December 2021
Subject MatterGovernment, Public Sector, Coronavirus (COVID-19), Government Contracts, Procurement & PPP, Government Measures, Employment and Workforce Wellbeing
Law FirmMayer Brown
AuthorMs Marcia Madsen and Kelyn J. Smith

In the aftermath of Executive Order (E.O.) 14042, federal courts across the United States are confronting challenges to the legality of the executive vaccine mandate on federal contractors. Most recently, Judge Gregory F. Van Tatenhove of the US District Court for the Eastern District of Kentucky evaluated a challenge made by plaintiff contractors and subcontractors in Kentucky (KY), Ohio (OH) and Tennessee (TN) and issued a preliminary injunction. In its November 30, 2021, opinion, the court questioned whether the president can use his "congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors" and ultimately answered, "no." (Frankfort Ky. v. Joseph R. Biden, Civil No. 3:21-cv-00055-GFVT, 2021 U.S. Dist. LEXIS 228316, at *1.) The opinion addressed the vaccine mandate for contractors broadly, but limited the impact of the preliminary injunction to covered contractors in KY, OH and TN.

Judge Van Tatenhove's opinion highlighted major events and developments that led to the vaccine mandate, including the following:

  • January 20, 2021 - E.O. 139991 - Established the Safer Federal Workforce Task Force. Id.
  • September 9, 2021 - E.O. 14042 - Required federal contractors to comply with COVID-19 workplace safety protocols set by the Safer Federal Workforce Task Force. Id. at *1-2.
  • September 24, 2021 - Pursuant to E.O. 14042, the Safer Federal Workforce Task Force required all federal contractor and subcontractor employees to be fully vaccinated. Id. at *3-5.

As a threshold issue, the court evaluated standing. It looked at whether the plaintiffs provided proof that the government's actions constituted a cognizable harm to future contracting opportunities that could be redressed and found standing satisfied. (Id. at *9-14.) Relying primarily on the fact that federal contracts accounted for billions of dollars in each of KY, OH and TN'in combination with the totality of the Biden administration's stance on its
COVID-19 guidance1'the court reasoned that "contractors who do not comply will likely be blacklisted from future contracting opportunities if they refuse to comply." (Id. at *9-12.) Furthermore, the court determined that "[e]njoining the vaccine mandate . . . would redress this injury." (Id. at *14.)

Ultimately, the court held that the president exceeded his constitutional and statutory authority in mandating federal contractor vaccinations under E.O...

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