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
On December 17, 2021, the Sixth Circuit dissolved the Fifth Circuit’s stay of the ETS. However, on January 13, 2022, the U.S. Supreme Court, finding that plaintiffs were likely to prevail on the merits, issued a new temporary stay. The court noted that while plaintiffs argued that the costs were too high and OSHA argued that the mandate would save lives, the court held:
Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented.
Given the Supreme Court’s stay, the future of the ETS in its current form is even more uncertain. The next step will be Sixth Circuit review of the petitions. In the meantime, the compliance deadlines instituted by OSHA are no longer in effect. Businesses can of course voluntarily implement their own guidelines in line with the ETS. This excellent Legal Update summarizes its requirements
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.
After a number of legal challenges and court rulings, the U.S. Supreme Court on January 13, 2022, upheld the CMS rule. The court agreed with the government that the rule “falls within the authorities that Congress has conferred upon [the Health and Human Services secretary]” as it “fits neatly within the language of the statute.” Justices Clarence Thomas, Samuel Alito, Amy Coney Barrett, and Neil Gorsuch dissented.
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.