Lawyers for the U.S. Attorney’s office told an Atlanta-based appeals court this week President Joe Biden has authority to restrict federal contracting to businesses that make their employees get a COVID-19 vaccination.
“The principal question in this case is whether the President may require federal agencies to do business only with contractors that agree to require that their employees be vaccinated,” according to the brief filed Tuesday with the U.S. Court of Appeals for the Eleventh Circuit. “The answer to that question is yes.”
Lawyers for the Biden administration want the appeals panel to throw out a preliminary injunction against the contractor vaccine altogether “or, at a minimum,” limit it to plaintiffs who actually hold federal contracts. The mandate was effectively suspended by a U.S. District judge in December.
Numerous states, including some that host Department of Energy nuclear cleanup sites, and a contractors association filed legal arguments with the appeals court earlier this month urging that the preliminary injunction from U.S. District Judge Stan Baker of Georgia remain in place.
The federal brief, filed on behalf of the Office of Management and Budget, DOE and a slew of other federal agencies, said the mandate is supported by both the law and facts. The policy was drafted by a federal COVID-19 safety task force following a Biden executive order in September.
“Directing the inclusion of a COVID-19 safety clause reduces the likelihood that contractor employees will contract a severe and highly transmissible illness and thus enables the government to avoid entering into costly contract modification extensions or paying millions of dollars in unanticipated leave expenses,” government lawyers argue.
The U.S. government brief argues this is not a big expansion of federal regulation, “because the President exercised only his proprietary authority―as purchaser of services―to impose conditions on the performance of federal contracts.”
Given the reality of a pandemic that has claimed more than 940,000 lives, the acting head of the Office of Management and Budget used a clause to skip a public comment period, where “urgent and compelling circumstances make compliance with the requirements impracticable,” the federal attorneys argue. “[S]ince the commencement of this appeal, roughly 29 million more COVID-19 cases have been reported in the United States.”
The biggest harm plaintiffs claim from the vaccination mandate is some unknown number of employees might quit or be fired rather than take the shot, and this is highly speculative, the government says. United Airlines and Tyson Foods respectively are reporting 99.7% and 96% compliance with their vaccine requirements, according to the brief.
The DOE and other federal agencies suspended plans to terminate vaccine refusers after the restraining order in December.
