If you’ve been paying attention to this space recently, you know that I have been covering developments relating to the President’s Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors.
As covered in my last post, guidance published by the Safer Federal Workforce Task Force initially required “covered contractors” to have all covered contractor employees fully vaccinated, “unless the employee is legally entitled to an accommodation,” no later than December 8, 2021. Since then, the deadline has been pushed back to January 2022.
However, in a significant development, the United States District Court for the Eastern District of Kentucky issued a preliminary injunction, temporarily halting enforcement of the federal contractor vaccine mandate in three states: Kentucky, Ohio, and Tennessee. In its ruling, the Court viewed the scope of the issue as a relatively narrow one (albeit with broad implications):
This is not a case about whether vaccines are effective. They are. Nor is this a case about whether the government, at some level, and in some circumstances, can require citizens to obtain vaccines. It can. The question presented here is narrow. Can the president use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors? In all likelihood, the answer to that question is no. So, for the reasons that follow, the pending request for a preliminary injunction will be GRANTED.
Op and Order, Kentucky v. Biden, No. 3:21-cv-00055-GFVT, at 1 (E.D. Ky Nov 30, 2021).
Notably, the Court did consider its authority to order a remedy more sweeping in nature:
The Defendants’ actions affect Kentucky, Ohio, and Tennessee, as well as the additional two plaintiffs in this case. However, individuals in every state in the country are affected. While it is true that the evidence presented by the parties primarily relates to Kentucky, Ohio, and Tennessee, this Court’s ruling rests on facts that are universally present in the federal government’s dealings with contractors and subcontractors in all of the states. Consequently, this Court must consider the breadth of its injunction. Should it temporarily enjoin enforcement of the vaccine mandate for contractors and subcontractors as it relates to (1) the Eastern District of Kentucky (this Court’s District); (2) Ohio, Tennessee, and Kentucky (the entities before the Court); or (3) all of the States (both parties and non-parties).
Id. at 27–28.
But the Court chose to limit the scope of its injunction such that only covered federal contractors and subcontractors operating in the aforementioned three states were relieved of their obligations to comply with the vaccine mandate.
It is worth mentioning, however, that this ruling comes on the heels of a Louisiana Federal Court issuing a nationwide preliminary injunction halting Centers for Medicare & Medicaid Services’ (HHS) rule mandating vaccines for healthcare facilities.
Appeals and continued litigation are obviously expected.
Stay tuned for continuing developments, and as the January deadline approaches.
