Department of Homeland Security contractors in three states will not have to enforce the federal vaccine mandate while a lawsuit challenging its constitutionality works its way through the courts.
In a message to contractors today, DHS Chief Procurement Officer Paul Courtney said the department “will take no action to enforce this clause in contracts, task orders, delivery orders or other contract-like instruments that will be performed, in whole or in part, in the states of Kentucky, Ohio, Tennessee, or any other state subject to future court order, absent further written notice from the agency.”
“In contracts and contract-like instruments in those states where the clause has not yet been included, Government efforts to insert the clause are suspended,” he added. “Furthermore, future solicitations and contracts for work performed in whole or in part in those states will include a notice of non-enforcement.”
Contractors who think their DHS contract may be affected are asked to confirm with their contracting officer. “My office is providing ongoing guidance to the DHS acquisition workforce regarding compliance with the court order,” Courtney said.
Last month, some states challenged the vaccine requirements for federal contractors in court as the administration released updated guidance on how contractors handle accommodation requests and deal with compliance issues.
The Biden administration announced at the beginning of November a common deadline for workers to be fully vaccinated — Jan. 4 — across all vaccination policies: the federal contractor vaccination requirement, the Health and Human Services requirement for vaccination of healthcare workers at all facilities participating in Medicare and Medicaid, and the Labor Department rule requiring vaccination or weekly COVID-19 testing at all companies with 100 or more employees.
The Labor Department’s Occupational Safety and Health Administration issued an emergency temporary standard requiring companies with 100 or more employees — or two-thirds of the nation’s private-sector workforce — to determine and record employees’ vaccination status, require notification and isolation from COVID-positive employees, and require testing and masking of employees who are not fully vaccinated. OSHA posted the ETS in the Federal Register with a deadline today for comments.
Attorneys general in Louisiana, Mississippi, and Indiana joined together in a lawsuit to challenge the vaccine requirement for federal contractors, claiming that the administration “failed to even try to connect its mandate with any statutory language that might authorize taking the action,” according to an announcement from the office of Mississippi Attorney General Lynn Fitch, and “violates the Nondelegation Doctrine by taking actions not authorized by Congress” as well as the Tenth Amendment and Spending Clause “by asking contractors, including many State agencies, to comply with highly ambiguous guidance applying to contractual relationships already in place.” The states argued that the contractor mandate should have been posted in the Federal Register and undergone a period of comment and rulemaking.
Kentucky, Ohio, and Tennessee filed a lawsuit in the U.S. District Court for the Eastern District of Kentucky on Nov. 4 claiming that the executive order violated the Constitution as well as the Federal Property and Administrative Services Act, the Competition in Contracting Act, and the Administrative Procedures Act. U.S. District Court Judge Gregory F. Van Tatenhove granted the states’ request for a preliminary injunction on Nov. 30. As a result, contractors and subcontractors with employees doing work in those three states do not currently have to abide by the vaccine mandate.
“While the statute grants to the president great discretion, 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,” Van Tatenhove wrote, stressing that while “consideration will continue with the benefit of full briefing and appellate review… right now, the enforcement of the contract provisions in this case must be paused.”
Federal agencies have been notifying contractors about the executive order’s applicability in the three affected states for the time being.
“Pursuant to the preliminary injunction, GSA will not take any action to enforce FAR clause 52.223-99 Ensuring Adequate COVID-19 Safety Protocols for Federal Contractors in all covered contracts or contract-like instruments being performed, in whole or in part, in Kentucky, Ohio and Tennessee,” the General Services Administration said in a notice to contractors.