The Federal Contractor Vaccine Mandate Is “On Hold,” at Least in Kentucky, Ohio, and Tennessee

On November 30, 2021, the United States District Court for the Eastern District of Kentucky in the lawsuit, Commonwealth of Kentucky et al. v. Joseph R. Biden et al., Civil Action No. 3:21-cv-00055-GFVT, granted a preliminary injunction enjoining the federal government from enforcing the federal contractor vaccine mandate, which has its genesis in Executive Order 14042 issued by President Biden on September 9, 2021 (“EO 14042”). The injunction applies to “all covered contracts in Kentucky, Ohio, and Tennessee.” The court acknowledged that “vaccines are effective” and “the government, at some level, and in some circumstances, can require citizens to obtain vaccines,” but determined that President Biden “exceeded his authority” under the Federal Property and Administrative Services Act in imposing EO 14042 on federal contractors and subcontractors. Moreover, the court entered a “permanent injunction,” stating, “Although the debate over the proper scope of injunctions is ongoing, this Court believes that redressability in the present case is properly limited to the parties before the Court. Consequently, the scope of the permanent injunction shall apply to Kentucky, Ohio, Tennessee and the additional sheriff plaintiffs before the Court in equal force.”

Notwithstanding the label as “permanent” versus “preliminary,” the injunction will undoubtedly be appealed to the United States Court of Appeals for the Sixth Circuit, the same appellate court that is considering whether to continue the stay of OSHA’s Emergency Temporary Standard imposing mandatory vaccination/testing for most employees of employers with 100 or more employees.

It is also unclear exactly how this injunction will be applied. Does this injunction mean that EO 14042 no longer applies to covered contracts that are being performed in Kentucky, Ohio, and Tennessee or to the employees in those three states employed by government contractors with “covered contracts” even if the work is being performed in other states? Does the injunction apply to a company with covered contracts based in one of those three states even if the company has employees working on those covered contracts who are living in one of the other 47 states? The details of applicability of the injunction of EO 14042 are currently unclear and could be subject to efforts to enlarge, modify, and/or vacate the injunction.

Furthermore, there are preliminary injunction hearings scheduled in several other challenges to the federal contractor vaccine mandate over the next week, including before the United States District Court for the Southern District of Georgia (December 3, 2021) and the United States District Court for the Middle District of Florida (December 7, 2021). Like what happened with the CMS Mandate issued for healthcare providers and suppliers, it is possible that one of these courts will extend the injunction, including potentially on a nationwide basis. If and until that occurs, however, government contractors who touch states other than Kentucky, Ohio, and Tennessee still potentially face consequences if they do not comply with EO 14042 outside of these states. For all of these reasons, the permanent injunction issued by the Eastern District of Kentucky is only a chapter of the story as to whether federal contractors and those they do business with must ensure that their employees are vaccinated.

AGG will continue to follow all of these developments closely so that we can continue to counsel our clients appropriately with respect to the ever-changing federal contractor vaccine mandate requirements.