President Joe Biden does not appear to have the authority to require vaccines for employees of federal contractors and subcontractors, a federal court judge in Lexington, Ky., ruled Dec. 1, halting implementation of the mandate in three states that filed suit against it—Kentucky, Ohio, and Tennessee—until the case merits are decided.
The states had claimed that Biden's executive order, announced in September, was unconstitutional. The order set an Oct. 15 effective date; mandated vaccine requirements be included in new contracts as of Nov. 14; and required employee vaccinations by Dec. 8. The deadline for full vaccination has since been moved to Jan. 18. The president also sought a mandate amendment to the Federal Acquisition Regulation (FAR), which governs federal procurement.
Biden administration officials have strongly argued that the federal government has the legal authority to require the mandates.
In his ruling, U.S. District Court Judge Gregory F. Van Tatenhove, appointed by President George Bush, has taken the opposite stance.
“Can the President use congressionally-delegated authority to manage the federal procurement of goods and services to impose vaccines” on the federal contractor workforce? asked Van Tatenhove. “In all likelihood, the answer to that question is no.”
The judge disputes the government’s contention that the states lacked standing to sue because the mandate only applied to future contracts. He said that some agencies are applying the mandate to current contracts, with contractors fearful of being "blacklisted from future contracting opportunities.”
Kentucky, Ohio, and Tennessee state agencies, as well as contractors based in those states, had about $9.9 billion, $12.5 billion, and $10 billion in government contracts in 2020, respectively, according to the ruling.
The mandate exceeds contracting authority, Van Tatenhove said, noting that the Biden administration use of a 1949 procurement statute to justify it “could be used to enact virtually any measure at the president’s whim under the guise of economy and efficiency. This power has its limits.”
The federal contractor vaccine order was followed in early November by an emergency temporary standard from the U.S. Occupational Safety and Health Administration that covers all employers with 100 or more employees, as well as others applying to federal workers and to health care companies paid by Medicare and Medicare. All have faced legal challenges.
States and private entities, including the Associated Builders and Contractors, joined in lawsuits against the large-employer OSHA standard in a number of courts, with the U.S. Court of Appeals in New Orleans temporarily halting it on Nov. 12, and the Cincinnati appellate court set to consider the now consolidated lawsuits. That case is expected to reach the U.S. Supreme Court, observers say.
Related to the federal contractor order temporary halt, Kentucky Attorney General Daniel Cameron termed it “a significant ruling." The Justice Dept. had not issued a statement by ENR posting time.
Even so, some legal experts say the federal government may still win on the merits of its order. “It is going to be more defensible” than the OSHA standard, Stewart Schwab, employment law professor at Cornell University, told Bloomberg Law. “It plays out differently than OSHA, because no company has to take a government contract,” he said.
Rob Duston, a labor and employment attorney at Saul Ewing Arnstein & Lehr, noted a long history "of broad discretion to impose requirements [in] a contract." He points to federal contractor requirements in areas such as non-discrimination that are stricter than for other private-sector companies, which have been in effect for more than 30 years.