A federal court judge in Georgia has issued a preliminary injunction against the Biden Administration’s mandate that employees of all federal contractors and subcontractors must be fully vaccinated against COVID by January 4, 2022. The injunction is effective immediately and prevents the mandate from being enforced against all federal contractors and subcontractors nationwide while the case is pending.
The court challenge was bright by seven states (Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia) and various other parties; the Associated Builders and Contractors, a nationwide trade organization, intervened on behalf of the plaintiffs.
The court found that plaintiffs are likely to succeed on the merits of their claims because the vaccine mandate, as directed in Executive Order 14042 and implemented in “guidance” issued by the Safer Federal Workforce Task Force, exceeds the President’s authority granted in federal Procurement Act. That statute authorizes the President to issue rules to promote economy and efficiency in federal procurement.
The judge ruled that Congress is expected to “speak clearly” when authorizing the exercise of powers of “vast economic and political significance” under the Procurement Act, but there is nothing in the Act that authorizes such a broad public health measure with major repercussions for the upwards of 20% of the U.S. economy.
This case is one of approximately ten similar cases that have been brought in various district courts throughout the country challenging the contractor vaccine mandate. The issue of presidential authority will likely end up in one or more appellate courts and perhaps the U.S. Supreme Court over the next several months.
Senate Votes to Withdraw OSHA Vaccine/Testing Mandate for Large Employers
On December 8, the U.S. Senate voted 52-48 to overturn the Occupational Safety and Health Administration’s Emergency Temporary Standard on COVID vaccines or testing for large employers. The vote was taken under the Congressional Review Act, a statue that allows Congress to overturn federal agency regulations by passing a resolution of disapproval in both houses by a majority vote; if the President signs the resolution, the agency action is repealed.
Democrat Senators Joe Manchin (WV) and John Tester (MT) joined all 50 Republicans in passing the Senate resolution. In the House, the resolution currently has 213 cosponsors; 218 votes are needed for passage. Even if the House passes the resolution, President Biden is not expected to sign it as he directed OSHA to issue the ETS for vaccines or weekly testing of employees. But it would send a strong message to the White House that presidential authority is not unlimited in dealing with the COVID pandemic.
Meanwhile, a federal court of appeals stay against the OSHA Emergency Temporary Standard remains in effect. Thirty-three similar appeals of the OSHA mandate have been consolidated for consideration in the Sixth Circuit Court of Appeals in Cincinnati, which is now considering the federal government’s emergency motion to vacate the stay.
The court of appeals decision granting the stay directed that OSHA take no steps to implement or enforce the mandate until further court order. In response to the stay, OSHA has ceased working to implement the Emergency Temporary Standard while the court cases are pending.
This GAWDA Safety Alert is issued by GAWDA Consultant Rick Schweitzer, Esq.
Please contact Rick for further information.