President Biden’s vaccine mandate for federal contractors has been halted in Tennessee, Kentucky and Ohio. Those states filed a lawsuit on November 8, 2021 and asked for a preliminary injunction stopping enforcement of the order. Yesterday, United States District Court Judge Gregory F. Van Tatenhove in the Eastern District of Kentucky entered an order granting that injunction. Here is a link to Judge Van Tatenhove’s order: Order Enjoining Contractor Mandate
In summary, Judge Van Tatenhove found that President Biden exceeded his authority when he issued an Executive Order implementing the mandate. The order focuses on whether the mandate is a proper exercise of authority under the Federal Property and Administrative Services Act (“FPASA”). Congress passed FPASA to create an economical and efficient system for procurement and supply for the federal government. But, Judge Van Tatenhove found that a procurement statute could not permissibly be used to implement a public health measure: “While the statute grants to the president great discretion, it strains credulity that Congress intended the FPASA, a procurement statute, to be the basis for promulgating a public health measure such as mandatory vaccination.”
What does Judge Van Tatenhove’s order mean for federal contractors?
Strictly speaking, this order only impacts contractors in Tennessee, Kentucky and Ohio. Contractors and subcontractors in those states do not have to comply with the mandate at this time.
What about contractors that are headquartered in Tennessee, Kentucky or Ohio, but have employees in other states? Judge Van Tatenhove did not explicitly address that scenario. The order says that the federal government is enjoined from “enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.” So, if the contract is “in” one of those states, the injunction might arguably require contractors to halt vaccine efforts for employees outside the state. The only way to get a real answer on this issue will be if one of the parties asks the Judge for clarification.
What’s next?
The order does not affect contracts “outside” Tennessee, Kentucky and Ohio. Therefore, contractors outside those states should continue with their preparations for the vaccine mandate. At the same time, keep watching the news. Judge Van Tatenhove is not the only federal judge considering a challenge to the contractor mandate.
In fact, Alabama Attorney General Steve Marshall and the State of Alabama joined a similar lawsuit filed in the United States District Court for the Southern District of Georgia. Here’s a link to a copy of the complaint in that case: Georgia Contractor Mandate Lawsuit. I’m told that a hearing has been set in that case for this Friday, December 3, 2021. Potentially, the Georgia judge could use Judge Van Tatenhove’s order as a roadmap for a similar injunction.
Stay tuned. I will update as I learn more.