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The Federal Contractor Vaccine Mandate Is Unlawful, Too

Jan. 19, 2022, 9:00 AM

Any statute in a storm appears to be the Biden administration’s approach to imposing a vaccine mandate. The Procurement Act of 1949 was created “to provide the Federal Government with an economical and efficient system for” procurement. Like the OSHA statute that the U.S. Supreme Court just held does not authorize a nationwide vaccine-or-test mandate, it says nothing about controlling Americans’ health-care decisions.

The Biden administration is nonetheless trying to use the Procurement Act to force all employees of federal contractors, approximately one-fifth of the U.S. labor force, to receive a Covid-19 vaccine or be fired.

After repeatedly claiming he would not impose any vaccine mandates, the president announced in September that his “patience [with the unvaccinated] was wearing thin,” and that his administration would rely primarily on employment, not public health, regulations to get Americans vaccinated. In addition to requiring federal employees to vaccinate, the administration issued three rules supposedly based on preexisting federal statutes to mandate vaccines for most American workers.

The first is the contractor mandate discussed above. Second, through OSHA, private companies that employ 100 or more people were to implement vaccine mandates or testing alternatives. Third, workers at health-care facilities that receive federal funds through Centers for Medicare and Medicaid Services (CMS) must get the vaccine.

On Jan. 13, the Supreme Court issued a stay of the OSHA mandate, finding that the Occupational Safety and Health Act only “empowers [OSHA] to set workplace safety standards, not broad public health measures” “untethered, in any causal sense, from the workplace.” Otherwise, OSHA would have limitless power over the personal health decisions of any American who works for a private company, an interpretation of the statute that cannot be squared with the Constitution’s constraints on executive power.

At the same time, the court ruled in favor of the Centers for Medicare & Medicaid Services mandate, in part, because the authorizing Medicare and Medicaid statutes concerned the provision of health care and the mandate’s reach is limited to health-care facilities where “workers [can] contract the virus and transmit it to their patients.” There is a clear limiting principle based on the nature of the workplace in question.

Though the federal contractor mandate has been temporarily enjoined nationwide by a district court in Georgia, many contractors and their employees remain in limbo, not knowing if and when the mandate might be put back in force.

Some contractors have begun to fire noncompliant employees using the mandate’s deadline, while others are getting ready to do so in anticipation of the temporary injunction being reversed or narrowed.

Stay Doesn’t Bode Well for Contractor Mandate

The reasoning underpinning the OSHA and CMS cases does not bode well for the survival of the federal contractor mandate. In the OSHA case, for example, the government argued that the mandate was tailored to workplace spread of Covid-19 because it exempted individuals who work entirely remotely or outdoors. But the Supreme Court didn’t buy it.

The contractor mandate is yet more violative of constitutional principles in question because it does not provide even these limited exceptions. In fact, the government’s FAQ explicitly says fully remote contractor employees must vaccinate or be fired without an explanation why.

Furthermore, the OSHA mandate provides for testing and masking options, while the contractor mandate does not. That the OSHA mandate allows for this less-intrusive alternative is another reason the contractor mandate is more vulnerable.

A vaccine mandate is also much further from the Procurement Act’s stated purpose of “economical and efficient” procurement than it is from the OSHA statute’s stated purpose. At least the OSHA statute is concerned with the health and safety of workers, albeit not outside the workplace. The Procurement Act, on the other hand, has nothing to do with worker health and safety.

Because the Procurement Act is designed solely to promote “economical and efficient” procurement of government contracts, the economic consequences of a vaccine mandate pose a big problem for the government. The government claims forcing contractors to fire unvaccinated employees will improve procurement efficiency by reducing worker absenteeism due to Covid-19 infections.

This defies common sense. As staffing shortages in the health-care industry demonstrate, firing employees for declining vaccination inflicts far greater economic disruption than temporary absenteeism.

Even the federal government disbelieves its efficiency-based pretext, as it has repeatedly delayed the date upon which it is supposed to fire unvaccinated federal workers, presumably because of the trouble that such action would cause. Before the Supreme Court’s OSHA decision, the U.S. Postal Service asked to be exempt from the OSHA vaccine mandate because otherwise it will suffer mass loss of workers and service disruptions.

The federal government clearly understands that firing workers for no reason apart from them being unvaccinated undermines “economical and efficient” operations because it repeatedly exempted itself from firing its own unvaccinated employees even as it forces private businesses to do so.

A Crucial Deficiency

All of the federal vaccine mandates suffer from a crucial deficiency: Evidence is piling up that transmission is possible despite vaccination, as CDC Director Rochelle Walensky has admitted. This is especially true with omicron, which is causing worker absenteeism among vaccinated and unvaccinated.

In the OSHA case, the government conceded that a mandate may be justified solely based on benefits to the individual employee, as opposed to stopping transmission, but such a philosophy would allow virtually endless intrusions into people’s personal health decisions. The Supreme Court correctly concluded Congress could not possibly have intended for OSHA to regulate personal health.

The same is true for the Procurement Act. Otherwise, there would no limiting principle. The government could, for example, force employees of contractors to eat vegetables and exercise to reduce health-related absenteeism, thereby making them more “economical and efficient” in fulfilling government contracts.

How ironic those purporting to champion workers’ rights are advancing a legal theory that treats workers as mere commodities to be exploited for the government’s benefit.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Jenin Younes is litigation counsel at the New Civil Liberties Alliance, where she has brought legal challenges against several employer vaccine mandates. She previously worked as a public defender in New York City.

Sheng Li is litigation counsel for the New Civil Liberties Alliance. Prior to joining NCLA, Li served as counselor to the administrator of Wage and Hour at the Department of Labor. He also has worked in the private sector as a litigation associate at Patterson Belknap Webb & Tyler and Kirkland & Ellis.