First, the Fifth Circuit temporarily stayed OSHA’s vaccine mandate. Next, a federal judge in Missouri temporarily stayed CMS’s vaccine mandate in 10 states, followed by the Western District of Louisiana’s national stay of that same mandate. Now, the Eastern District of Kentucky has temporarily stayed the federal contractors and subcontractors vaccine and mask mandate in 3 states, including Ohio. These federal mandates seem to be dropping like flies in a plague! So, what does this mean for Ohio businesses?
For the time being, Ohio contractors who have entered into contracts directly with a federal agency for work to be performed in Ohio, Kentucky, and Tennessee do NOT need to require their employees to get vaccinated or wear masks in compliance with the provision requiring them to follow the COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors, as enforcement of the contractual provision requiring such compliance has been temporarily stayed.
On November 4, 2021, Ohio, Kentucky, and Tennessee, along with the sheriffs of Seneca and Geauga Counties, filed suit in The United States District Court for the Eastern District of Kentucky challenging the federal contractors and subcontractors vaccine and mask mandate and immediately sought a preliminary injunction of the mandate while the suit is pending. In an order issued on November 30, 2021, the Eastern District of Kentucky granted the preliminary injunction and stayed enforcement of the federal contractual provision that requires compliance with the COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors. In issuing the injunction, the court stated that it is likely that President Biden exceeded his congressionally delegated authority to manage the federal procurement of goods and services in requiring what amounts to a public health measure as part of federal procurement contracts.
While it is clear that this stay applies to Ohio contractors who contract directly with a federal agency to perform work in the states of Ohio, Kentucky, and Tennessee, it is unclear whether it would apply to work performed by the same contractors outside of those states, as the Eastern District of Kentucky declined to apply the injunction nationally.
It is also unclear whether the stay would apply to the same provision in subcontracts. Since the provision between the federal agency and the general contractor requires the general to include the same provision in its contracts with its subs, the provision trickles down the line between private subcontractors and sub-subscontractors. But it is unclear whether a private general contractor would be able to enforce the provision as against its subs, and so on down the line. The reasoning behind the stay was that the court found that the President likely exceeded his authority in requiring federal agencies to include a health measure in a procurement contract, not that private companies could not include vaccine mandates in their contracts. So, failure to abide by such a provision in a contract between a general and a sub or a sub and a subsub could lead to liability, even if the work is performed in Ohio, Kentucky, or Tennessee. Moreover, failure to include the provision in trickle-down contracts now could lead to problems later down the line if the mandate is ultimately upheld and a general or sub is unable to modify its contracts to include the trickle-down provision.
So, if you are an Ohio contractor or sub doing work on or in connection with a federal contract, we recommend that you speak to the designated contracting officer of the company imposing the vaccine mandate language, in order to determine the expectations of the company with which you are contracting. Your Critchfield attorney is also ready to provide you with more detailed information and answer any questions or concerns that you might have.