In the latest in a series of judicial decisions impeding executive agency action that had been aimed at slowing COVID-19 vaccination rates in the U.S. (see here and here), on November 30, 2021, a federal judge for the Eastern District of Kentucky issued a preliminary injunction blocking implementation of President Biden’s Executive Order 14042 which would require federal contractors to ensure their employees are vaccinated against COVID-19. The 29-page order and preliminary injunction in Kentucky v. Biden, 3:21-cv-00055-GFVT (E.D. Ky. Nov. 30, 2021), applies to federal contractors only in Kentucky, Ohio, and Tennessee, but similar challenges are percolating in other jurisdictions as well, including Arizona, Florida, Georgia, Oklahoma, and Texas.
After finding that the plaintiff State Attorneys General had standing to challenge the Executive Order, as the citizens of their states had lucrative current and future government contracts at stake, Judge Gregory F. Van Tatenhove concluded that the petitioners were likely to succeed in their argument that the Biden administration exceeded its authority over the federal procurement of goods and services when it issued an executive order requiring that the providers of those services impose vaccine mandates on their workforces. Although the Court recognized Congress had delegated its procurement authority to the President through enactment of the Federal Property and Administrative Services Act (FPASA) in order to promote economy and efficiency in federal contracting, he wrote: “[T]his power has its limits.” Continue Reading
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The California Legislature increased the complexity of employment law in the Golden State by enacting several employment laws that will soon take effect. Below we summarize key aspects of the more significant new legislation.
On November 5, 2021, the federal Centers for Medicare and Medicare Services (CMS) issued an emergency regulation requiring that many types of health care facilities and providers that receive Medicare or Medicaid funds ensure that their staff, contractors, and volunteers receive at least their first COVID-19 vaccine dose by December 6, 2021 and be fully vaccinated by January 4, 2022. The vaccination requirements apply to 15 categories of Medicare and Medicaid-certified provider and supplier types that are regulated under the Medicare/Medicaid health and safety standards known as Conditions of Participation (CoPs), Conditions for Coverage (CoCs), or Requirements, including hospitals, ambulatory surgery centers, community mental health centers, end-stage renal disease facilities, home health agencies, hospices, and rehabilitation agencies, among others. The Rule does not provide an alternative for periodic testing in lieu of vaccination, but does still require reasonable accommodation for religious, medical, and disability reasons.
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Back in June Acas produced a report on the “fire and re-hire” practices used by some employers to make detrimental changes to employees’ terms and conditions of employment. In essence, the employee is given notice of dismissal from his old contract but offered immediate reinstatement on a new one which incorporates the changes the employer wanted to make. The practice has been thrown into particular relief by the Covid pandemic and the consequence adverse impact on some employers’ ability to maintain previous contract terms.
