On November 30, 2021, a federal judge issued a preliminary injunction halting enforcement of the federal contractor and subcontractor vaccine mandate requirements issued by the Safer Federal Workforce Task Force in response to President Biden’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors.  The mandate requires covered contractor employees to be fully vaccinated by January 18, 2022.  Our prior postings on the contractor mandate can be found here.

Judge Gregory F. Van Tatenhove’s decision came in a case filed by Kentucky, Ohio, Tennessee, and Sheriffs from two Counties in Ohio, in their official capacitates, in the U.S. District Court for the Eastern District of Kentucky, one of more than a dozen challenges currently pending before federal courts.  Here, Judge Van Tatenhove found that President Biden likely exceeded his authority under the Federal Property and Administrative Services Act.  Specifically, the Judge expressed concern that allowing the mandate to stand would: (1) limit competition in the procurement process; (2) violate the constitutional nondelegation doctrine; and (3) infringe on rights reserved for the states under the Tenth Amendment.  As a result, Judge Van Tatenhove halted enforcement of the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.  He appears to have left other aspects of the COVID-19 requirements, such as masking and social distancing guidelines, in effect.

Accordingly, for the time being, covered contractors are no longer mandated to require their covered workers in Kentucky, Ohio, and Tennessee to be vaccinated.  And while the preliminary injunction issued in Commonwealth of Kentucky, et al. v. Joseph R. Biden, et al. only applies to covered contracts in Kentucky, Ohio, and Tennessee, 20 other states are currently challenging the mandate in several jurisdictions and non-state parties have brought additional claims – meaning all covered contractors should be watching closely to see whether similar injunctions are issued in states where they have covered workers.

It is unclear whether the federal government will seek to have the injunction lifted, and whether such an effort will be successful.  What is clear is that the legal process will continue for some time, leaving contractors in a state of limbo as they assess what their compliance obligations are now and prepare to adjust as those obligations change.

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Photo of Guy Brenner Guy Brenner

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group and is co-head of the Non-Compete & Trade Secrets Group. He has…

Guy Brenner is a partner in the Labor & Employment Law Department and leads the Firm’s Washington, D.C. Labor & Employment practice. He is head of the Government Contractor Compliance Group and is co-head of the Non-Compete & Trade Secrets Group. He has extensive experience representing employers in both single-plaintiff and class action matters, as well as in arbitration proceedings. He also regularly assists federal government contractors with the many special employment-related compliance challenges they face.

Guy represents employers in all aspects of employment and labor litigation and counseling, with an emphasis on non-compete and trade secrets issues, medical and disability leave matters, employee/independent contractor classification issues, and the investigation and litigation of whistleblower claims. He assists employers in negotiating and drafting executive agreements and employee mobility agreements, including non-competition, non-solicit and non-disclosure agreements, and also conducts and supervises internal investigations. He also regularly advises clients on pay equity matters, including privileged pay equity analyses.

Guy advises federal government contractors and subcontractors all aspects of Office of Federal Contract Compliance Programs (OFCCP) regulations and requirements, including preparing affirmative action plans, responding to desk audits, and managing on-site audits.

Photo of Jacob P. Tucker Jacob P. Tucker

Jacob Tucker is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration and Employment Counseling & Training Groups.