On December 7 another door slammed shut on President Biden’s ambitious attempt to use his control over the federal bureaucracy to mandate COVID-19 vaccinations throughout the national workforce. That day a federal district court judge slapped a nationwide preliminary injunction on the administration’s program designed to force federal contractors and subcontractors to vaccinate their employees or fire them.
A week earlier another federal district court judge based in Kentucky also issued a preliminary stay on the contractor order, but chose to limit its effect to only three states: Ohio, Kentucky and Tennessee.
The federal contractor cases quickly became particularly contentious because, unlike other mandates, this one does not allow employees who decline to get vaccinated to keep their jobs as long as they are willing to submit to regular testing and wearing masks.
Then District Court Judge R. Stan Baker of the Southern District of Georgia, who handed down the latest stay, which this time applies to the entire country, said the President exceeded his statutory authority. The reasons he gave for granting the stay request were similar to those cited by other courts when they also chose to block other kinds of vaccine mandates, most notably regarding the challengers’ likelihood of success in court.
Baker said that it was likely that those suing would be able to prove that the President exceeded the authority granted to him by Congress in the Federal Procurement Act when he chose to issue the order. Baker noted that the order “has already required and will continue to require extensive and costly administrative work by employers and will force at least some individuals to choose between getting medical treatment that they do not want or losing their job (and facing limited job replacement options due to the mandate).”
As an example of some of the damage and expenses being imposed on employers, the judge cited evidence provided by three universities in his state: Augusta University, Georgia Institute of Technology (Georgia Tech) and the University of Georgia. They described the extent of the financial damage and turmoil the requirement will cause among the extensive number of employees connected to federal contracts.
UGA has 14,728 employees working on or in connection with federal contracts. Georgia Tech has about 16,000 employees who are working on federal contracts totaling approximately $664 million this year for various agencies. Augusta receives over $17 million per year and has roughly 5,802 employees working on federal contracts. All three testified to the extensive financial cost and the danger of losing contracts and employees if the order is ultimately imposed on them.
The judge said the President’s order “goes beyond the administration and management of procurement and contracting; in its practical application (requiring a significant number of individuals across the country working in a broad range of positions and in numerous different industries to be vaccinated or face a serious risk of losing their job), it operates as a regulation of public health. It will also have a major impact on the economy at large, as it limits contractors’ and members of the workforce’s ability to perform work on federal contracts.”
The President’s press secretary was unimpressed with the arguments against the employment-based mandates. “The reason that we proposed these requirements is that we know they work and we are confident in our ability legally to make these happen across the country,” Jen Psaki said. She also claimed a similar requirement for federal workers to get the jab has resulted in 92% of them being vaccinated.
However, Biden recently announced publicly that those federal workers who had not gotten their shots will not risk being fired or face any other disciplinary action at least until early in the new year.
Similar injunctions also have been handed down by courts for the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS), and the Center for Medicare and Medicaid Services (CMS) vaccine mandate for healthcare workers at Medicare- and Medicaid-certified medical facilities.