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Status Update on Vaccine Mandates

By Rebekah Page-Gourley posted 12-01-2021 10:43


In recent weeks, federal vaccine mandates have faced a number of lawsuits. What follows is a quick update on the status of legal challenges to the Occupational Safety and Health Administration (OSHA), Centers for Medicare and Medicaid Services (CMS), and federal contractor mandates.

OSHA Mandate

As discussed in this blog post, the Sixth Circuit has been selected to hear the petitions challenging the OSHA emergency temporary standard (ETS) for workplace vaccine or testing mandates issued on November 5, 2021. OSHA filed an emergency motion to dissolve the stay on November 23, 2021. The briefing schedule for the motion has been announced: other parties had to join by November 30, 2021; parties must file responses by December 7, 2021; and OSHA and others must file reply briefs by December 10, 2021. Until the Sixth Circuit rules on the motion, the ETS remains stayed.

CMS Mandate

On November 5, 2021, the CMS issued an Omnibus COVID-19 Health Care Staff Vaccination rule. 86 Fed Reg 61555 (2021). This article outlines some of the rule’s major provisions. However, there have been several legal challenges, including one by the state of Missouri. Most recently, on November 30, 2021, the U.S. District Court for the Western District of Louisiana issued a nationwide injunction against the CMS rule.

Federal Contractors

On September 9, 2021, President Biden issued Exec Order 14,042 requiring vaccines for employees of certain federal contractors. The Safer Federal Workforce Task Force published a guidance document for that executive order. However, on November 30, 2021, the U.S. District Court for the Eastern District of Kentucky granted a preliminary injunction against it. In granting the injunction, the court wrote, “Can the president use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors? In all likelihood, the answer to that question is no.” For now, the injunction applies only to Kentucky, Ohio, and Tennessee.

Wait and See

Litigation involving vaccine mandates is ongoing, and employers likely feel some uncertainty about how to proceed in the interim. According to this informal poll, most employers are taking a wait-and-see approach to the OSHA mandate.