The Biden Administration’s action plan to overcome the pandemic saw major setbacks this week as courts around the country halted the administration’s mandatory COVID-19 vaccination policies for federal contractors and subcontractors and health care workers.
Specifically, on September 24, 2021 the Biden Administration issued guidance to supplement a previously issued Executive Order, in effect requiring employees of covered contractors (including prime contractors or subcontractors) to be fully vaccinated by December 8, 2021. Three states—Kentucky, Ohio and Tennessee—sued the Biden Administration to enjoin the regulation. Judge Gregory Van Tatenhove, of the U.S. District Court for the Eastern District of Kentucky, granted the injunction, finding that although Congress used its power to delegate procurement authority to the President to promote economy and efficiency in federal contracting, the limits of this power were exceeded. Judge Tatenhove limited the injunction to only the three plaintiff states.
Further, on November 5, 2021, the Biden Administration announced that many types of health care facilities and providers that receive Medicare or Medicaid funds must ensure that their staff, contractors, and volunteers are fully vaccinated by January 4, 2022. This emergency Interim Final Rule, issued by the Centers for Medicare and Medicare Services (CMS), was enjoined by two federal judges. Judge Matthew T. Schelp of the U.S. District Court for the Eastern District of Missouri ruled that a preliminary injunction was warranted because he believed that the plaintiffs’ argument that the CMS lacked authority to implement the requirement had merit, and because the CMS vaccine mandate was likely arbitrary or capricious. The opinion temporarily blocks application of the regulation in the ten states that brought the case, including: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. Similarly, Judge Terry Doughty, of the U.S. District Court for the Western District of Louisiana, deciding a challenge to the rule brought by fourteen other states, granted an injunction of the rule also, writing that there “is no question that mandating a vaccine to 10.3 million healthcare workers is something that should be done by Congress, not a government agency.” Judge Doughty’s ruling applies nationwide, except in the 10 states referenced where the CMS was already prevented from enforcing the rule.
The Biden administration has already appealed the rulings affecting the CMS rule, and is likely to appeal the ruling affecting the federal contractor rule, all which come at uncertain times as the country monitors the Omicron coronavirus variant. Ballard Spahr’s Labor & Employment Group is prepared to counsel impacted federal contractors, health systems and businesses about the status of these rules, and how to plan for the quickly approaching vaccination deadlines.