Also on Tuesday, a federal judge in Missouri issued a different preliminary injunction, blocking a Biden administration mandate that required health care workers to have at least started a vaccine regimen by Dec. 6 and be fully vaccinated by Jan. 4.
A key thing to remember, as Dayton Taft Law attorney Brandon Dobyns sees the contractor case, is that the injunction itself is preliminary, meaning the case has not worked its way to a conclusion.
The Biden administration had argued that the vaccine mandate was necessary to slow the spread of COVID-19.
Federal contractors
The court issued an injunction to stop the government from enforcing a vaccine mandate on federal contractors — but it only applies in Ohio, Kentucky and Tennessee.
A lot of contractors, especially defense contractors, have other offices outside Ohio, noted Dobyns, who is legal counsel for the Dayton Defense trade organization.
“For those offices outside Ohio, they (contractors) will need to push forward as if compliance is required,” Dobyns said. “Because the injunction does not reach beyond those three states.”
If a contractor has offices in Indiana or California, for example, the administration’s mandate can be enforced.
“It’s kind of a mess,” Dobyns said.
His advice to clients: As a practical matter, the U.S. Department of Justice has been swift about appealing these injunctions. Dobyns suspects an appeal will be filed in the next week or so. The injunction could be suspended.
“Companies need to be prepared to comply (with the vaccine mandate),” Dobyns said. “The most prudent course is to prepare as if this injunction will be overturned and prepare to comply” he said.
Some legal observers have noted that the decision comes from a judge in the Sixth Circuit, the same circuit determining the fate of an additional Biden administration Occupational Safety and Health Administration mandate, a broader mandate applying to employers with more than 100 employees.
But Dobyns believes that the federal contractor mandate may stand the test of time better than the broader proposed OSHA rule.
“It has a much greater chance of sticking around,” he said. “You have the option of whether or not you want to do business with the federal government,” he added.
Dayton Defense did not take a position on the mandate, he said.
Health care rulings
As for the court case over the health care requirement, Dayton-area hospitals were already pursing vaccination requirements for employees before the federal mandate was issued.
Premier Health said Thursday that they “are reviewing the court decisions and will determine next steps we need to take, if any, after a thorough review.”
Kettering Health said its vaccine policy “protects the health and safety of our staff, our patients, and our community. We began our vaccination prior to the CMS requirements. The current rise in COVID-19 cases across our region and state emphasizes the importance of being vaccinated.”
About 59% of Ohio nursing home health care staff were fully vaccinated as of mid-October, in the latest analysis by AARP.
Pete Van Runkle, executive director of the Ohio Health Care Association, which represents nursing homes, said the case is still pending and it’s possible there won’t be a decision until spring, but there’s no specific timeline.
This does, however, shelve enforcement for now, and nursing homes won’t need to lose the workers if they don’t get vaccinated by the original deadline. The industry is still encouraging people to get their COVID-19 vaccine, and some individual facility operators have their own requirements.
“As we have all along, we’re recommending that our members keep trying to get people vaccinated,” he said.
