AGC Preparing Lawsuit to Further Bolster Mandate Challenges
Two federal courts have now issued preliminary injunctions against the Administration’s mandate that federal contractors and subcontractors (working directly on federal government contracts) require many, if not all of their employees to be fully vaccinated against COVID-19. On November 30, the U.S. District Court for the Eastern District of Kentucky issued a preliminary injunction against the enforcement of this mandate in Kentucky, Ohio, and Tennessee. And on December 7, the U.S. District Court for the Southern District of Georgia issued a preliminary injunction against the enforcement of the mandate “in any state or territory of the United States of America.” As these events unfold, AGC of America continues to prepare to file its own lawsuit against the mandate.
While these decisions are very encouraging, they are far from the last word. The federal government has already appealed the Kentucky court’s decision to the Sixth Circuit (which sits in Cincinnati) and moved the district court for an emergency stay of its injunction pending that appeal. The federal government has yet to respond to yesterday’s decision but AGC of America has every reason to expect it to file a similar appeal of that decision to the Eleventh Circuit (which sits in Atlanta) and to move for an emergency stay of the Georgia court’s injunction. AGC members should also note that these two decisions are not final decisions on the merits. They are just decisions to freeze the status quo, pending the outcome of the cases. The bottom line is that a lot more litigation lies ahead.
As these events unfold, AGC of America continues to prepare to file its own lawsuit against the mandate. To that end, it has worked with several members on declarations that will reveal how the mandate is actually impacting AGC members. AGC of America has also engaged experts to provide a well-documented declaration on the impact that the mandate is likely to have on federal construction as a whole.
Thus far, the courts have been largely content to declare that the mandate is a public health policy, and not a procurement policy, and that the president therefore lacked the authority to require it. While helpful, these decisions also beg an important question, and that is whether a public health policy passes muster where it does have the effect of promoting economy and efficiency in federal procurement. AGC of America intends to directly challenge the proposition that the mandate – whether a public health or procurement policy – will have that effect.
In short, the mandate is that federal contractors and subcontractors require all employees working on or in connection with federal contracts and subcontracts (and all employees working in a location where any member of the preceding group is “likely to be present”) to be fully vaccinated against COVID-19. Unlike the OSHA standard that AGC of America has already challenged, this mandate is a hard one that admits of no exceptions for those willing to be tested for COVID-19 on a weekly basis.