TOPEKA – (October 28, 2021) – Noting that a new federal vaccination mandate stands on shaky legal grounds, is propped up by inconsistent federal directives, and requires compliance on an unworkable timeline in the midst of a supply-chain crisis, Kansas Attorney General Derek Schmidt and 20 other state attorneys general yesterday called on President Biden to halt implementation of his administration's evolving mandatory vaccination requirement for federal contractors.
"The Biden Administration's attempt to muscle into federal contracts an unprecedented provision requiring contractors to employ only vaccinated people is a cynical attempt to outpace judicial review," Schmidt said. "But this federal contractor mandate, like other vaccination mandates the Biden administration is promoting loudly and at breakneck pace, likely exceeds the power vested in the federal government, and we intend to challenge it in court. The Biden administration wants to coerce companies and state agencies, including universities, into complying before the judicial system has time to act, but those companies and agencies should proceed with caution and not be stampeded."
On September 9, President Biden issued an executive order directing federal departments and agencies to include a clause in federal contracts requiring all contractors and subcontractors to ensure adequate COVID safety protocols. On September 24, pursuant to the Biden executive order, the Safer Federal Workforce Task Force issued guidance imposing a vaccination mandate that is more expansive than the president ordered, is internally inconsistent, and is at odds with actions taken elsewhere by the federal government. On September 30, the administration issued proposed contract language, and since then federal agencies have been pushing contractors to quickly agree to the new provision.
“[W]e strongly urge you to instruct the Task Force and federal agencies to halt any efforts to implement the federal contractor mandate," the attorneys general wrote to the President. "All citizens – including federal contractors – have the right to make their own decision about whether to receive the COVID-19 vaccine. At the very least, you should provide additional guidance addressing the ambiguities and inconsistencies in the mandate, ensure that guidance is applied uniformly, and allow agencies and contractors additional time to comply.”
As various federal agencies have begun to issue their implementing memoranda and guidance, federal contractors have faced a series of conflicting directives. Instead of assistance from the Biden administration in making sense of the inconsistencies, contractors have faced short deadlines coupled with the threat of being blacklisted or losing federal contracts for non-compliance. As a result, many have rushed to comply without questioning or resisting the dramatic and sudden change in federal contract requirements, and some have interpreted the new provision broadly to minimize the risk of noncompliance.
The federal contractor vaccination mandate is separate and distinct from another federal vaccination mandate being proposed for private businesses that employ at least 100 people. Schmidt previously announced that he and a coalition of state attorneys general will challenge that federal mandate, which is being developed by the Occupational Safety and Health Administration (OSHA), but by law they cannot file that legal challenge until the OSHA mandate is finalized and comes into existence by being formally published.
Schmidt said he continues to encourage Kansans to be vaccinated against COVID-19 but believes strongly that is a health care decision to be made by each individual, not mandated by the federal government.
"No Americans should be threatened by their government with losing their jobs because their health care decisions differ from those preferred by the President of the United States," Schmidt said.
A copy of the letter is available at https://bit.ly/3vXZzLd.