In a November 30, 2021 opinion blocking the Biden Administration's federal contractor COVID-19 vaccine mandate, Judge Gregory F. Van Tatenhove, U.S. District Judge for the Eastern District of Kentucky posed a "narrow" question: "Can the president use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contracts?" Judge Tatenhove then answered that question with a resounding "no" and granted a preliminary injunction enjoining the mandate in Kentucky, Ohio, and Tennessee.
By now, we all know the story of Executive Order 14042. Issued on September 9, 2021 as part of President Biden's COVID-19 Action Plan, the EO led to the Safer Federal Workforce Task Force's "COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors," which begat the Federal Acquisition Regulatory Council's FAR clause, and led to innumerable agency deviations to incorporate the clause and the guidance into covered contracts. Agencies picked up the Biden Administration's strong encouragement to expand the breadth of the EO, and contractors and subcontractors raced to meet shifting deadlines - which most recently landed on January 18, 2022 for covered contractor employees to be fully vaccinated.
All the while, it seemed likely that the Task Force Guidance vaccination mandate would avoid the legal morass encumbering its sister mandate, issued as OSHA's COVID-19 vaccination and testing emergency temporary standard. The government should certainly be able to set the terms of its contracts, or so it thought, with Administration personnel repeatedly advising: "if you want to do business with the federal government, vaccinate your workforce." The government's conditioning contracting on vaccination does not seem that different from a university or private employer implementing a mandate. The argument goes, you are not being forced to vaccinate, but if you choose not to, you cannot study or work here. Similarly, Judge Tatenhove acknowledged that under the federal contractor mandate:
contractors and subcontractors are free to choose whether they want to bid for federal government contracts. Only if a contractor or subcontractor chooses to contract with the federal government will they be required to abide by the vaccine mandate. Therefore, the federal government is not forcing the vaccine mandate on contractors writ large, only contractors and subcontractors who choose, moving forward, to contract with the federal government.
Despite the breadth of the authority delegated by Congress to the president in procurement matters under the Federal Property and Administrative Services Act (FPASA), the Judge concluded that the FPASA has never "been used to promulgate such a wide and sweeping public health regulation as mandatory vaccination for all federal contractors and subcontractors" and cautioned that "the President's authority is not absolute." The Judge indicated that regarding the contractor vaccine mandate, the government cannot demonstrate a "close enough nexus to economy and efficiency in federal procurement."
Further, the Judge determined that the mandate would hinder "full and open competition pursuant to the Competition in Contracting Act, and [the government] Defendants have not demonstrated that they followed the 'congressionally designed procedure for' excluding unvaccinated contractors and subcontractors from government contracts."
Referring to the U.S. Court of Appeals for the Fifth Circuit's stay of OSHA's ETS, Judge Tatenhove opined that "[i]f OSHA promulgating a vaccine mandate runs afoul of the nondelegation doctrine, the Court has serious concerns about the FPASA, which is a procurement statute, being used to promulgate a vaccine mandate for all federal contractors and subcontractors." Of additional concern to the Judge were Tenth Amendment issues and the possibility that the federal government infringed on the states' general police power.
Judge Tatenhove next evaluated the administrative process followed by the government, finding that it may have been "at times, inartful and a bit clumsy," but that it "likely followed the procedures required by statute." He also found that the Administration did not act arbitrarily and capriciously. Nonetheless, the Judge's statutory and Constitutional concerns carried the day, and he entered a preliminary injunction with a scope limited to Kentucky, Ohio, and Tennessee.
It unclear how the limited scope of the order to these three states works in practice. Federal government contracts are not so easily boxed in, as a federal government contract could have the covered employee, the employer, the government contracting office, and the contract's place of performance all in different states. The government may not even know where all covered contract employees are located, particularly when the contractor mandate covers remote workers.
Please reach out with any questions as we all work to untangle these and other questions raised by Judge Tatenhove's opinion. We are ready to assist you in ensuring the safety and health of your workforce, as you consider your compliance options.
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