In the latest in a series of judicial decisions impeding executive agency action that had been aimed at slowing COVID-19 vaccination rates in the U.S. (see here and here), on November 30, 2021, a federal judge for the Eastern District of Kentucky issued a preliminary injunction blocking implementation of President Biden’s Executive Order 14042 which would require federal contractors to ensure their employees are vaccinated against COVID-19. The 29-page order and preliminary injunction in Kentucky v. Biden, 3:21-cv-00055-GFVT (E.D. Ky. Nov. 30, 2021), applies to federal contractors only in Kentucky, Ohio, and Tennessee, but similar challenges are percolating in other jurisdictions as well, including Arizona, Florida, Georgia, Oklahoma, and Texas.

After finding that the plaintiff State Attorneys General had standing to challenge the Executive Order, as the citizens of their states had lucrative current and future government contracts at stake, Judge Gregory F. Van Tatenhove concluded that the petitioners were likely to succeed in their argument that the Biden administration exceeded its authority over the federal procurement of goods and services when it issued an executive order requiring that the providers of those services impose vaccine mandates on their workforces. Although the Court recognized Congress had delegated its procurement authority to the President through enactment of the Federal Property and Administrative Services Act (FPASA) in order to promote economy and efficiency in federal contracting, he wrote: “[T]his power has its limits.”

Judge Van Tatenhove agreed with the plaintiffs’ argument that the connection between vaccination and efficiency in federal procurement was too attenuated, even though the administration argued that vaccination reduces labor costs and absenteeism, minimizes supply shortages, and improves workplace efficiency, concluding that the President exceeded his “whim under the guise of economy” when he imposed an inflexible vaccination mandate. Despite the Court’s prefatory comments that “vaccines are effective” and in some circumstances, may even be required by the government, Judge Van Tatenhove opined that “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.”

Finally, the Judge wrestled with whether to issue a nationwide injunction, which would bar implementation of the Executive Order nationally, or limit it only to the parties before the Court. In the end, he did the latter, expressly tailoring the injunction only to the states that brought the action before him. The net result is even more employer headaches; if operating a multistate operation, the Executive Order may be in effect in some locations but enjoined in others. It also foreshadows challenges in other jurisdictions regarding whether the administration exceeded its delegated authority, with possibly inconsistent outcomes leading to internal administrative chaos and employee and employer dissent. For the time being, federal contractors in Kentucky, Ohio, and Tennessee do not need to comply with the Executive Order’s upcoming deadlines, barring further appellate action.

Employment Law Worldview