On November 30, 2021, the United States District Court for the Eastern District of Kentucky issued an order granting a preliminary injunction to halt enforcement of the vaccine mandate for federal contractors set forth in Executive Order 14042. Unlike the block of the CMS-issued vaccine mandate for health care providers, which was issued by a district court in Louisiana on November 29, the preliminary injunction issued by the Eastern District of Kentucky, in this case, is not nationwide but applies only in Kentucky, Ohio, and Tennessee. In issuing the three-state injunction, the court indicated that the question presented was 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", concluding that "In all likelihood, the answer to the question is no."
The federal contractor mandate at issue has been in effect since September 9, 2021. Covered federal contractors and subcontractors have spent weeks ramping up to meet a deadline of January 18, 2022, for full vaccination of all covered personnel. Many covered employers already may have taken substantial steps towards compliance with the required protocols, including issuing policy announcements and gathering proof of vaccination for impacted personnel, and considering exemption requests based on religious and medical exceptions. Some covered federal contractors may already have vaccine mandates in place.
The district court's decision is subject to appeal and further legal proceedings are likely. But, for now, Executive Order 14042 is no longer enforceable in Kentucky, Ohio, and Tennessee, while it remains in effect (including the January 18 compliance deadline) in other states. This means that, for now, covered federal contractors in those three states are not required to take further steps to enact vaccine mandates.
Federal contractors ramping up for compliance in Kentucky and Ohio may choose to stand down from those efforts, for now, or may wish to voluntarily comply with the provisions of Executive Order 14042 in case it comes back into effect prior to the current compliance deadlines. Currently, there are no state laws in Kentucky or Ohio restricting the ability of private employers to enact Coivd-19 vaccine mandates. However, employers in those states should monitor any developments with respect to new state laws.
Employers in Tennessee should proceed with caution, as a state law that went into effect on November 12, 2021, prohibits employers in Tennessee from compelling employees to provide proof of vaccination or taking adverse action against employees who refuse to verify vaccination status based on objections to receiving the vaccine. The Tennessee law does provide exemptions for employers covered by the CMS rule for health care providers as well as Executive Order 14042, but, since neither of those federal laws is currently in effect in Tennessee, employers are not currently able to apply for those exemptions. On December 1, 2021, the Tennessee Comptroller of the Treasury issued a memorandum suspending all exemptions granted to date, presumably placing those employees back under the requirements of the state law, at least for now. This means that employers in Tennessee, including employers who believed they were covered by one of the federal vaccine mandates, could run afoul of the Tennessee law if they proceed with rolling out vaccine mandates or taking steps in preparation for mandates, such as requiring employees to provide proof of vaccination.
Recent developments with respect to the various federal vaccine mandate initiatives have created a very confusing situation for employers, which is further compounded by the need to comply with brand new, and often contradictory, state laws. Employers should continue to monitor these developments closely and confer with an experienced employment law attorney for specific advice on how to proceed.
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