Airport Alert: Federal Contractor Vaccine Mandate Blocked and Senate to Vote on Large Employer Vaccine Mandate
December 8, 2021
There have been several notable developments this week on the Executive Order that required federal contractors and subcontractors to be fully vaccinated and the emergency temporary standard issued by OSHA that imposed new vaccine requirements for employers with 100 or more employees. Both of these federal directives require affected personnel to be fully vaccinated by January 18, 2022, and have implications for airports.
Federal Contractor Vaccine Enforcement Blocked
On December 7, U.S. District Court Judge R. Stan Baker issued a stay to bar the enforcement of the federal contractor vaccine mandate from going into effect nationwide in January 2022. In the preliminary injunction, Judge Baker ruled that the Biden Administration had exceeded its procurement authority.
The order came in response to a lawsuit from several contractors and seven states (Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia). The injunction applies nationwide because one of those that challenged the executive order is a trade group--Associated Builders and Contractors Inc.--whose members do business nationwide.
This ruling follows a November 30 decision by the U.S. District Court for the Eastern District of Kentucky that issued a preliminary injunction for the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.
Following the U.S. District Court ruling, the General Services Administration (GSA) issued guidance that stopped the government from taking any enforcement actions in these three states. We would expect GSA to issue similar nationwide guidance shortly. These judicial decisions directly impact airports that were contemplating signing amended other transaction agreements (OTAs) for legacy canine teams or GSA lease agreements because the federal contractor vaccine mandate is now blocked until a court rules otherwise.
Following this ruling, the White House indicated that the Justice Department would "vigorously defend" this mandate in court so more legal reviews will follow. At a press briefing on Tuesday, White House Press Secretary Jen Psaki stated that "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."
Senate Resolution to Nullify Vaccine Mandate on Large Employers:
Senate Republicans, led by Mike Braun (R-IN), have drafted a resolution that would block the vaccine mandate for large employers. Republicans are using procedures set up in the Congressional Review Act (CRA), which provides a fast-track process in the Senate that allows the minority party to force a vote on a resolution to disapprove a federal rule.
Last week, Senator Joe Manchin (D-WV) announced that he would support the disapproval resolution against vaccine mandates on private businesses, and yesterday, Senator Jon Tester (D-MT) announced that he was inclined to vote in favor of it, as well. It is possible that a few more Senate Democrats will join Senators Manchin and Tester by the time the Senate votes on the resolution, which is expected to occur later today. With all 50 Senate Republicans and at least two Democrats, the resolution will pass the Senate.
The House of Representatives does not have a similar fast-track process. After the Senate passes the resolution, House Republicans are planning to circulate a discharge petition to force Speaker Nancy Pelosi (D-CA) to schedule a vote on the resolution; however, they would need at least a handful of House Democrats to join them for this to occur.
If both the Senate and House pass the resolution, the victory will be symbolic because President Biden will veto it, according to Psaki.
