February 6, 2023

Volume XIII, Number 37

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February 03, 2023

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U.S. District Court Enjoins Vaccine Mandate for Federal Contractors in Kentucky, Ohio, and Tennessee

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.

© Steptoe & Johnson PLLC. All Rights Reserved.National Law Review, Volume XI, Number 341

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William J. Wahoff, Steptoe Johnson, Title VII Discirimination Attorney, Employment Litigation Lawyer,

Bill Wahoff’s primary focus is health and safety law, including OSHA on a national basis, workers’ compensation, Ohio VSSR, and intentional tort litigation defense. He has vigorously represented employers at several thousand administrative hearings, in numerous court cases, including jury trials, and mandamus actions.  He also has significant experience representing employers in federal and state court employment litigation and in labor negotiations. He has handled ADA, FMLA, and race, gender-based, Title VII discrimination cases and has bargained with the UAW,...

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Known as a fervent advocate for her clients, Nelva Smith is a labor and employment attorney whose wide-ranging experience makes her an extremely effective advisor for her clients. From general day-to-day counseling, to litigation, workers' compensation, and safety and health issues, employers of all sizes rely on Nelva to guide them through the myriad challenges of labor and employment law.  Nelva is diligent and aggressive in defending her clients’ interests and is experienced assisting clients in the automotive, aviation, construction, and manufacturing industries....

Mark Hanshaw Education Attorney Steptoe Johnson Louisville
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Clients appreciate when their attorney is inspired and energetic about their area of practice and Mark Hanshaw embodies that. Mark, a seasoned educator, lawyer, and academic administrator, has been entrenched in the vibrant higher education environment for many years and feels privileged to work in an industry that is his calling. Transitioning from the classroom and boardroom into the role of trusted legal advisor, Mark advises higher education administrators and in-house counsel on regulatory compliance,  policy and procedure development, and growth strategies. Mark is...