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Updated 1/25/22: Status Update on Vaccine Mandates

By Rebekah Page-Gourley posted 01-25-2022 16:16


In recent months, 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 and employee 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.

On January 25, 2022, OSHA announced that it was “withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard” effective January 26, 2022, but that it is not withdrawing the ETS “as a proposed rule.” OSHA further explained: “The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard. OSHA strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.”

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. 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.

Federal Employees

Also on September 9, 2021, President Biden issued Exec Order 14,043 requiring vaccines for federal employees. The administration delayed enforcement of the mandate several times and paused discipline for noncompliance. On January 21, 2022, the U.S. District Court for the Southern District of Texas stayed Exec Order 14,043 nationwide. At the time of the injunction, 98 percent of federal employees were reportedly either already vaccinated or had sought authorized exemptions.