As educational institutions sort through the contradictory patchwork of legal requirements regarding COVID vaccine mandates that have emerged over the past year, a U.S. District Court in Kentucky added one more wrinkle. While acknowledging that the government has the capacity to impose vaccine mandates under certain circumstances, the Court found the recent Biden administration Executive Order imposing such requirements for employees of federal contractors to be unlawful.
Under Executive Order 14042, executed on September 9, and subsequent implementing guidance, federal contractors and their employees are required to be fully vaccinated by January 18, 2022, absent a legal accommodation. In Commonwealth of Kentucky v. Biden, Plaintiffs, including the states of Kentucky, Ohio and Tennessee, challenged the authority of the Biden administration to impose the COVID vaccine mandate on federal contractors.
The Executive Order relied upon the Federal Property and Administrative Services Act (FPASA), a federal regulatory system governing procurement, to authorize its mandate. In its November 30, 2021 Order, the court narrowly reasoned that the health-related objectives of the Biden Executive Order were so unrelated to the purpose of FPASA that the action of the administration was unwarranted. As the court observed, “If a vaccination mandate has a close enough nexus to economy and efficiency in federal procurement, then the statute could be used to enact virtually any measure at the president’s whim under the guise of economy and efficiency.”
The injunction ordered by U.S. District Judge Gregory Van Tatenhove affects only the states of Kentucky, Ohio, and Tennessee and is likely to be appealed to the Sixth Circuit Court of Appeals. Additional challenges to the Executive Order await hearing in other states.
As the dust settles surrounding this opinion, challenges to other federal COVID vaccine mandates have also quickly taken shape in separate actions. An Emergency Temporary Standard (ETS) was published on November 5, 2021, by the Occupational Safety and Health Administration (OSHA), which requires employers with 100 or more employees to develop and implement vaccination and/or COVID testing and face covering requirements. The U.S. Court of Appeals for the Fifth Circuit imposed a stay upon the enforcement of the OSHA rule by Order, dated November 12, 2021, with all of the cases filed now consolidated before the Sixth Circuit in Cincinnati. As well, a vaccine requirement for healthcare workers imposed by the Centers for Medicare and Medicaid Services (CMS) has been stayed by an Order of the U.S. District Court for the Western District of Louisiana, issued November 30, 2021. Each of these measures could impact higher education institutions in their capacity as employers and as providers of health services offered on individual campuses.
If your institution needs support in developing appropriate policies related to COVID vaccines and/or testing that are responsive to the evolving legal landscape, contact the Steptoe & Johnson Higher Education Team.