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Updated 12/20/21: Status Update on Vaccine Mandates

By Rebekah Page-Gourley posted 12-20-2021 10:54


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 was 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. Other parties had to join by November 30, 2021; parties had to file responses by December 7, 2021; and OSHA and others had to file reply briefs by December 10, 2021.

On December 17, 2021, the Sixth Circuit dissolved the Fifth Circuit’s stay of the ETS. The court mentioned the Omicron variant in its opinion, noting that OSHA’s argument that it could not assume that COVID-19 levels would not increase again throughout the country “has proven correct, as we now see the rise of new and more transmissible variants and the resulting increases in COVID-19 cases.” Immediately following the issuance of the Sixth Circuit’s opinion, OSHA issued an announcement that it will implement the standard according to a new timeline:

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

If you are assisting employers preparing to comply with the ETS, be sure to review this excellent Legal Update summarizing its requirements.

In the meantime, on December 8, the Senate voted to block the OSHA mandate. The House has not voted. There have already been several petitions filed in the U.S. Supreme Court asking for a new stay.

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. On November 30, 2021, the U.S. District Court for the Western District of Louisiana issued a nationwide injunction against the CMS rule. The government appealed, and on December 15, 2021, the Fifth Circuit denied the government’s motion to stay the injunction as it applies to the 14 plaintiff states. And because of the prior ruling by the federal court in Missouri, an injunction is also in place for another 10 states. Additionally, a federal court in Texas granted an injunction applying only to Texas. Given these developments, about half of the states are not under a current injunction, and the CMS has applied to the U.S. Supreme Court for a stay of the Louisiana, Missouri, and Texas injunctions.

In a memo issued December 2, 2021, the CMS stated that it would not enforce its vaccine mandate while the injunctions are in place. The CMS has not issued any updated information as to what its approach will be in states where there is no current injunction.

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. On December 17, 2021, the Eleventh Circuit denied a motion by the federal government to stay enforcement of that injunction.