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DeSantis sues federal government for requiring contractors to follow vaccine protocol

·10 min read

Florida Gov. Ron DeSantis and Attorney General Ashley Moody filed another lawsuit against the U.S. government Thursday, challenging the rule requiring companies that are federal contractors to show proof of vaccination or weekly COVID tests of their employees and calling it a “heavy-handed mandate never authorized by Congress.”

The lawsuit, filed in the U.S. District Court in the Middle District of Florida’s Tampa division, is one in a series of lawsuits against the federal government’s COVID-19 protocols, specifically the vaccine mandates, imposed by President Joe Biden. It seeks to halt implementation of the Dec. 8 deadline that applies to federal contractors.

“We are going to seek a preliminary injunction so that this mandate isn’t allowed to be imposed at the expense of the jobs of Floridians,’’ DeSantis said at a press conference in Lakeland. “We’ve got a very big footprint of companies that do contracting work for the federal government,’’ including the defense contractors and many along the Space Coast of Florida. “There’s a lot of folks that will be in the cross hairs on this.”

The complaint notes that several state agencies hold contracts with the federal government. The Florida Department of Education provides vending and other food-related services in federal buildings in Florida, and Florida’s public universities also have many contracts with NASA, especially for research.

“These contracts are worth tens of millions of dollars, if not more,’’ the complaint said. “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 executive order issued by Biden on Sept. 9 said the intention was to “decrease the spread of COVID-19, which will decrease worker absence, reduce labor costs, and improve the efficiency of contractors and subcontractors at sites where they are performing work for the federal government.”

On Sept. 24, the White House Safer Federal Workforce Task Force released guidance setting a Dec. 8 deadline for most employees of federal contractors to get vaccinated against the coronavirus or show evidence of a negative test weekly. The Federal Acquisition Regulatory Council on Sept. 30 followed with a memo on implementing the mandate.

In addition to arguing that Biden has no authority to issue the rule, the lawsuit notes that the rule encourages agencies to make deviations as needed but, Moody argues, “deviations are not an appropriate manner to implement a government-wide procurement policy.”

Another legal challenge brewing?

DeSantis said he is also prepared to challenge a rule sought by Biden that requires businesses with 100 or more employees to offer either a vaccine or a weekly testing option to keep their workplaces safe from COVID-19. The rule is expected to be released by the Occupational Safety and Health Administration in the next week, but questions loom about whether it is legal.

“It still hasn’t come out yet after all these weeks,’’ DeSantis said. “And I wonder whether it’s not come out because it’s got a lot of problems. There’s not going to be I think a very clear path for that to go forward.”

At a national level, however, the Business Roundtable, whose membership is comprised of corporate CEOs, said it is supportive of the Biden mandate because it affirms policies already in place in many companies.

DeSantis also said he should have a proclamation released Thursday that sets the dates for a November special legislative session he said last week he wanted to impose additional penalties on businesses that require vaccines or regular COVID-19 testing of their employees. The governor said he supports a ban on vaccine mandates, but he has backed off calling for that in Florida in the face of quiet resistance among the business community.

“In Florida, we believe these things are choices based on individual circumstances,’’ he said.

In a briefing with reporters Wednesday, Jeff Zients, the White House COVID-19 response coordinator, said that the administration wants “to get people vaccinated and protected, not to punish them.”

White House press secretary Jennifer Psaki has also said that the administration has no intention of backing off the rule because its legal advisers are confident the president has the authority to protect the federal workforce and federal contracting through the rule, and its public health advisers say the mandates work.

“The requirements for federal workers and contractors will not cause disruption,” Zients said, noting that many large employers such as United Airlines and Tyson Foods have already implemented them.

With the deadline more than a month away for contractors, he said the federal agencies were “creating flexibility within the system. We’re offering people multiple opportunities to get vaccinated. There is not a cliff here.”

He added: “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.”

On Oct. 12, Psaki responded to criticism from both DeSantis and Texas Gov. Greg Abbott, who tried and failed to get the Texas Legislature to prevent employers from requiring vaccines or testing in their workplaces.

“These decisions put these two leaders out of step with both longtime requirements — a history of vaccine mandates — but also many business leaders in their states,’’ Psaki told reporters, noting that both Disney and American Airlines “are taking steps to help boost vaccination rates, reduce deaths, hospitalizations — reduce hospitalizations, and expand the country’s labor pool.”

She said the governors were “putting politics ahead of public health” and suggested that “every leader should be focused on supporting efforts to save lives and end the pandemic.”

Robert Doyle, director of the division of Blind Services at the Florida Department of Education which provides contracted food services in federal offices, said at the press conference that the federal mandate will force his employees to choose “between providing for their families or being able to keep their jobs.”

“This is not a conversation about a vaccine. This is a conversation about a federal overreach,’’ he said.

Moody, who has used her office to assist DeSantis in pursuing his opposition to mandates, said she is making good on a promise.

“Never did we dream that in this administration we would be having to repeatedly push back on unlawful actions coming out of Washington and incompetent, reckless leadership coming out of Washington,’’ she said at the news conference. “But we’re here, and we said when these vaccine mandates were announced that we would take legal action and push back and I’m proud to say, today we are fulfilling that promise.”

The lawsuit’s argument

The lawsuit argues that the federal rule is invalid “because it does not reflect reasoned decision making” and “is a Trojan horse for federal regulation of public health.”

In addition to Biden, the lawsuit names former U.S. Sen. Bill Nelson as head of the National Aeronautics and Space Administration, and other federal officials as defendants.

In the complaint, Moody argues the federal government is using administrative policy to pursue public health goals and that violates the federal administrative procedures act.

“While the government pays lip service to the rationale of ‘improv[ing] economy and efficiency’ in federal procurement,’’ the complaint states, “...it openly admits that its true purpose is to ‘get more people vaccinated and decrease the spread of COVID-19.’ ”

Since the delta variant led to a record surge in COVID cases and deaths in Florida, the governor has steered away from promoting the vaccine and instead directed his energy on allowing people to get monoclonal antibody treatments when they fall ill with the virus, and he has focused his public comments on opposing vaccine requirements. He refers now to vaccines as “jabs” and “shots.”

“We’ve gone from 15 days to slow the spread to three jabs to keep your job somehow. Are you kidding me?’’ he said on Thursday.

Moody has also sued the Biden administration and the U.S. Centers for Disease Control and Prevention in April over the federal shutdown order of the nation’s cruise industry. In September, Moody wrote a legal opinion saying that school districts must comply with a state rule that says parents must have the ability to opt their kids out of mask requirements “unless and until the judiciary declares them invalid.”

Moody’s action on school mask mandates

Her legal opinion was offered a day after Leon County Circuit Court Judge John C. Cooper ruled that DeSantis and his administration “acted without legal authority” when issuing and enforcing a blanket ban on mask mandates.

Cooper said that the governor exceeded his authority when he issued an executive order that drew its authority from portions of the Parents’ Bill of Rights. The law was approved by the Republican-dominated state Legislature and signed by the governor on June 29. Two days after his ruling, a three-judge panel on the conservative 1st District Court of Appeal reinstated the governor’s ban on mask mandates.

For the last week, the DeSantis administration has come under bipartisan fire for the comments of his newly appointed Surgeon General Joseph Ladapo who rejected a request to wear a mask when meeting with a state senator who is being treated for cancer.

The incident prompted Republican Senate President Wilton Simpson to call his behavior “unprofessional” and said that anyone in the future who didn’t abide by the requests of senators “will be asked to leave.”

In his first public comments about the incident on Tuesday, Ladapo said that by wearing a mask he couldn’t “communicate clearly.” He offered no apology. Appearing on Fox News on Wednesday, Ladapo said he was “constantly under attack” and said that Florida would “be making data-based decisions about public health in Florida.”

He also said there was an “obsession with masking kids in school” and called the evidence “in support of it very weak.”

“The highest quality evidence” shows “there’s really no evidence of a health benefit as an improvement in a child’s health outcome by implementing these massive mandates,’’ Ladapo told Fox host Tucker Carlson.

At odds with the CDC

He did not address the issue raised by public health officials that while students may have minor health outcomes from the coronavirus, they can be asymptomatic carriers who can unwittingly spread it to older people at home and school. The Center for Disease Control and Prevention has released studies “that highlight the importance of using layered prevention strategies including universal masking to stop the spread and minimize disruptions to school operations for safe in-person education.”

In August, at the peak of the surge of the coronavirus in Florida which was fueled by the highly infectious delta variant, the CDC released a recommendation that “everyone in areas of substantial or high transmission wear a mask in public indoor places, even if they are fully vaccinated.”

Six days ago the CDC updated its guidance for COVID-19 prevention in K-12 schools. It includes: “due to the circulating and highly contagious Delta variant, CDC recommends universal indoor masking by all students (age 2 and older), staff, teachers, and visitors to K-12 schools, regardless of vaccination status.”

McClatchy White House correspondent Bryan Lowry contributed to this report.

Mary Ellen Klas can be reached at meklas@miamiherald.com and @MaryEllenKlas

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