October 29, 2021 - Government Executive
Eleven states with Republican governors are challenging the Biden administration’s vaccine mandate for federal contractors between two lawsuits filed on Thursday and Friday.
The state of Florida filed a lawsuit in the U.S. District Court for the Middle District of Florida in the Tampa Division seeking an injunction on the mandate that has a December 8 deadline for millions of employees of federal contractors to get vaccinated against COVID-19. Then on Friday, Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota and Wyoming filed a similar lawsuit in the U.S. District Court for the Eastern District of Missouri also seeking an injunction.
“We cannot have the federal government coming in, exceeding their power,” said Florida Gov. Ron DeSantis, during a press conference on Thursday. “They’re really rewriting contracts and they’re transforming normal contracting into basically public health policy and that’s not anything Congress has ever authorized.” He noted there is “a very big footprint in Florida” in federal contracting, such as with NASA and the General Services Administration, and said he is worried about job losses for those who decline to get vaccinated.
“Florida expects to continue pursuing government contracts in the future,” said the lawsuit. “Because Florida’s employees are generally not required to be vaccinated, the challenged actions threaten Florida with the loss of millions of dollars in future contracting opportunities and put undue pressure on Florida to create new policies and change existing ones, each of which threatens Florida with imminent irreparable harm.”
The Florida lawsuit alleges 10 counts of violations of federal contracting and administrative procedure laws, taking issue with the executive order, guidance from the Safer Federal Workforce Task Force, the Office of Management and Budget rule approving the guidance and the Federal Acquisition Regulatory Council’s guidance.
“Other suits have preceded this one, though this new challenge puts more focus on federal procurement and administrative law than others we have reviewed to date,” Craig Smith, partner at the law firm Wiley Rein who specializes in government contractors, told Government Executive. Christina Pushaw, press secretary for DeSantis, told Government Executive that to their knowledge Florida was the first state to sue the Biden administration over the contractor vaccine mandate.
“President Biden has arrogated to the executive branch the unilateral power to mandate that all employees of federal contractors be vaccinated,” said the lawsuit from the 10 other states. “Employees of federal contractors constitute one-fifth of the total U.S. workforce. And the mandate goes so far as to demand vaccination even from employees who work entirely within their own home. That is unconstitutional, unlawful, and unwise.” Their lawsuit has 12 counts of alleged violations of law.
Attorneys general from eight of those 10 states were among the 21 AGs who sent a letter to Biden contesting the vaccine mandate for federal contractors, WLOX reported.
David Berteau, president and CEO of the Professional Services Council, which represents over 400 companies, told Government Executive the association is “watching [the cases] closely, but in the meantime, the important thing to note is that you have a signed contract, and ...you're going to comply with the clause. That’s the way contracts work.” This applies in other situations, such as government shutdowns, in which “just because the customer isn't open doesn't mean you stop working on your contract.”
The National Defense Industrial Association, which represents defense contractors, had no comment on the initial Florida lawsuit, but shared a message from its Board Chairman Arnold Punaro on October 15 about how it has been engaging with the administration on implementation of the mandate.
“The overarching message coming out of these calls is that the administration is willing to take the risk of companies losing some employees. They believe from their data that there will be “noise up front and compliance in the back” as this directive is implemented,” wrote Punaro to association members. “Because we know your workforce is your most valuable asset and one that is not easily replaced, NDIA does not agree [that] unnecessarily losing employees is an acceptable risk to our companies.”
He added that NDIA leaders are gathering information from membership on experiences with Defense contracting officers, issues with exemptions or any other concerns, which will be consolidated and made anonymous, then sent to the department.
During the COVID-19 briefing on Wednesday, Jeff Zients, White House coronavirus response coordinator, said once the deadlines for the mandates come, “we expect federal agencies and contractors will follow their standard [human resources] processes and that, for any of the probably relatively small percent of employees that are not in compliance, they'll go through education, counseling, accommodations and then enforcement.” He added “we're creating flexibility within the system and “the purpose, I think, most importantly, is to get people vaccinated and protected, not to punish them.”
“This is a once in a generation pandemic that has taken the lives of more than 700,000 Americans, and the president has committed to pulling every lever possible to save lives and stop the spread of the virus,” said a spokesperson for OMB, in response to the lawsuits. OMB is one of the agency defendants in both lawsuits. “Vaccine requirements work: they’re good for workers, good for the economy, and good for the country. The president has authority to promote efficiency in federal contracting in this way. The Department of Justice and Equal Employment Opportunity Commission have already determined that COVID vaccines can be mandated by employers.”