Federal Judge Enjoins COVID Vaccine Mandate for Federal Contractors – A federal district court judge in Frankfort, Kentucky has issued a preliminary injunction against the Biden Administration’s mandate for COVID vaccines for federal contractors and subcontractors. The injunction applies to federal contracts in Kentucky, Ohio and Tennessee, the three states that filed the legal challenge.
The judge held that the vaccine mandate exceeded presidential authority granted in two federal procurement statutes, and also voiced concern as to whether the mandate violated constitutional prohibitions against Congress delegating its legislative authority to the Executive Branch without providing an intelligible principle to guide its use of discretion in rulemaking.
The judge also ruled that this exercise of power is not granted to the President, but is reserved to the States under the Constitution.
This is the first decision on the merits in cases challenging the federal contractor mandate. There are at least eight similar cases pending in federal district courts around the country, and other district court judges might reach different conclusions or grant injunctions affecting contracts in other states. Ultimately, the appellate courts will weigh in on these questions as the expected appeals move forward.
In addition, a federal court of appeals stay against the Occupational Safety and Health Administration’s Emergency Temporary Standard requiring employers with more than 100 employees to ensure their employees are vaccinated against COVID or submit to weekly testing and masking in the workplace remains in effect. A number of similar appeals of the OSHA mandate (over 30 in all) have been consolidated for consideration in the Sixth Circuit Court of Appeals in Cincinnati.
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.
Court Enjoins Federal Contractor Mandate for COVID Vaccines – 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.
FMCSA Issues Guidance on Submitting DUIs to Drug and Alcohol Clearinghouse – The Federal Motor Carrier Safety Administration has issued guidance on new requirements contained in the agency’s October 7, 2021 final rule on its Drug and Alcohol Clearinghouse.
The guidance notes that the new Clearinghouse rule does not change any of the requirements for employers to query CDL and commercial learner’s permit holders and report drug and alcohol program violations. All requirements previously established by the first Clearinghouse rule remain in place.
But the guidance notes that new rule includes an update regarding actual knowledge violations. Companies that know that one of their drivers received a DUI while operating a CMV must submit that citation to the Clearinghouse even if the citation does not result in a conviction. The following question and answer has been added to the Clearinghouse website to summarize this change.
- If a CDL driver’s employer is aware that the driver received a traffic citation for driving a CMV while under the influence of alcohol or controlled substances, the employer must report this to the Clearinghouse as actual knowledge of prohibited use of drugs or alcohol. If the citation does not result in a conviction, may the driver petition to have this violation removed from their Clearinghouse record?
- Effective November 8, 2021, an actual knowledge violation, based on the issuance of citation for DUI in a CMV, will not be removed from the Clearinghouse when the citation does not result in a conviction.
In the final rule published on October 7, 2021 (86 FR 55718), FMCSA clarified that a driver subject to FMCSA’s drug and alcohol use and testing requirements, who has been issued a traffic citation (or other charging document) for DUI in a CMV, has violated 49 CFR part 382, subpart B. Accordingly, the 2021 final rule amends the regulation to state that a report of actual knowledge of prohibited use of drugs or alcohol, based on the issuance of DUI in a CMV, will remain in the Clearinghouse for 5 years, or until the driver has completed the return-to-duty process, whichever is later, regardless of whether the driver is ultimately convicted of the DUI offense. Drivers who are not convicted of the offense may petition to submit documentary evidence of non-conviction to their Clearinghouse record.
