December 03, 2021
Warning against the broad use of federal contracting authority to achieve policy goals, a Kentucky federal judge has temporarily halted the vaccine mandate for federal contractors. With all three Biden administration vaccine mandates covering private employees now subject to at least partial injunction, it may be weeks before any may be permanently invalidated or reinstated.
For now, the federal contractor ruling is limited to Kentucky, Ohio, and Tennessee, meaning that the mandate is still in effect for federal contractors and their employees in all other states. In his ruling, the judge stated that if the government’s procurement authority could be used to require a public health measure such as vaccination, “then the statute could be used to enact virtually any measure at the President’s whim.”
In Louisiana, meanwhile, a federal judge issued a nationwide temporary injunction of the vaccine mandate for health care workers at hospitals that receive federal funding.
In Florida, Governor Ron DeSantis (R) signed a new law which will require employers to allow employees to opt-out of any vaccine mandate imposed by that employer, even if the requirement is imposed pursuant to federal law. Opt outs for medical and religious reasons—with lower burdens for the employee to meet than under the ADA and Title VII—as well as for immunity (i.e., previous infection) are included and the law also allows employees to choose periodic testing or use of employer-provided PPE in place of getting vaccinated.
In Utah, Governor Spencer Cox (R) signed a similar law which will allow employees to opt out of a vaccine mandate for a “sincerely held personal belief,” and require employers to pay for any regular testing it mandates.
White House gives federal contractors further compliance flexibility: The Biden administration has clarified that it will not take adverse actions against federal contractors with employees who are not fully vaccinated by the January 4 compliance deadline, provided the employer is making a “good-faith effort” towards ensuring their covered employees are fully vaccinated. Further, the White House said that federal contractors should not immediately fire employees who fail to comply by the January 4 deadline and instead exhaust other outreach or disciplinary options such as education, counseling, and letters of reprimand.
Outlook: With all three federal vaccine mandates covering private employees now subject to at least a partial temporary hold, employers are left in compliance limbo until further judicial decisions are made. The period of uncertainty will almost certainly extend into the new year, and more importantly, past the initial compliance deadlines. However, even without the federal vaccine mandates, employers are still empowered to implement their own vaccine mandates, subject to state-imposed restrictions. They should continue to prepare for compliance with federal requirements should the temporary holds be eventually rescinded, while remaining mindful of any conflicting state requirements.