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 Legal Update, 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 had to 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. In the meantime, on December 8, the Senate voted to block the OSHA mandate. Whether it passes in the House or is ultimately vetoed by President Biden, the issue is unlikely to be resolved soon. The losing party in the Sixth Circuit will likely appeal to the U.S. Supreme Court.
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. In a memo issued December 2, 2021, the CMS stated that it would not enforce its vaccine mandate while the injunctions are in place. However, on December 7, the U.S. Court of Appeals for the Eleventh Circuit denied Florida’s motion for an injunction. Florida could rely on the Louisiana decision, or it may attempt to appeal the Eleventh Circuit ruling to the U.S. Supreme Court.
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.” That injunction applied only to Kentucky, Ohio, and Tennessee. But on December 7, 2021, the U.S. District Court for the Southern District of Georgia issued a nationwide injunction.
Wait and See
As it stands, there are nationwide injunctions blocking all three federal vaccine mandates. 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.