Updated on December 7, 2021
All federal vaccine mandates stayed pending Court action
On September 9, 2021, President Biden issued Executive Order 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors which mandated that employees of federal contractors be fully vaccinated for COVID-19, following recommendations of the Safer Federal Workforce Task Force. In early November 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to implement mandatory vaccination or weekly testing of unvaccinated employees. Additionally, the Centers for Medicare and Medicaid Services (CMS) released a new rule requiring COVID-19 vaccination for healthcare employees at Medicare and Medicaid-certified suppliers and providers. A further summary of the OSHA ETS and its updates can be found here and here.
All of these rules have been challenged in federal court. We provide below a short summary of the current status of these rules and what the next steps will be.
Federal Contractor Requirements:
Stayed nation-wide
On December 7, 2021, a federal judge ruled that President Biden overstepped his authority with Executive Order 14042 in The State of Georgia v. Biden (21-cv-00163) (S.D. Ga) and issued a nationwide injunction for the vaccine requirement for employees of federal contractors. The decision is available here. This follows another ruling on November 20, 2021, in Commonwealth of Kentucky et. al. v. Biden et. al. (3:21-cv-00055) that enjoined the rule in the three states that challenged the federal contractor requirements: Kentucky, Ohio, and Tennessee. The response from the Biden Administration and possible appeals are still developing.
Note: This is an update as of December 7th, 2021.
OSHA ETS:
Stayed nation-wide
On November 6, 2021, the OSHA ETS for federal contractors was stayed by the 5th Circuit Court of Appeals. OSHA announced that it has suspended “the implementation and enforcement of the ETS pending future developments in litigation”.
With challenges to the ETS filed in 9 out of the 11 U.S. Circuit Courts, a lottery on November 12, 2021 determined that the 6th Circuit court would hear all the cases in a consolidated proceeding. More information about this lawsuit can be found here. While the litigation continues, the Justice Department has asked the court to lift the stay in its entirety or, in the alternative, to permit the ETS’s masking and testing requirements for unvaccinated workers to be implemented to protect workers and public health. Briefing on this motion will conclude on December 10 and the 6th Circuit is expected to issue a decision shortly thereafter. The 6th Circuit has also denied OSHA’s request for an expedited briefing schedule. A decision on whether or not to lift part of all of the stay is expected by the end of the month. The order denying the briefing stay can be read here.
Finally, OSHA has extended the comment period for the ETS until January 19, 2022, to allow stakeholders 45 more days to review and respond to the rule. Comments can be submitted online through regulations.gov.
CMS:
Stayed nation-wide
On November 30, 2021, a federal judge in Louisiana issued a preliminary nationwide injunction of the CMS vaccine requirement for healthcare workers at Medicare and Medicaid-certified facilities. The ruling also pauses the requirement that healthcare providers document vaccinations, allow medical and religious exemptions to the mandate, and provide accommodations for employees that are fully vaccinated.
This Louisiana ruling follows the November 29, 2021, ruling by a federal judge in Missouri that blocked the implementation and enforcement of the CMS rule in 10 states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.
The Justice Department has already asked the 8th U.S. Circuit Court of Appeals to review the Missouri ruling. CMS is also expected to appeal the nationwide stay to the 5th U.S. Circuit Court of Appeals, the same Court that also stayed OSHA’s ETS. CMS’s position on the litigation is here.
The comment period for the CMS vaccine rules closes on January 4, 2021.
What’s next?
Given the multiple lawsuits, it is possible that the CMS and federal contractor legal challenges may be consolidated as the OSHA ETS litigation was, for purposes of judicial economy. All three mandates, which were to go into effect on January 4, 2022, will ultimately move to the U.S. Supreme Court for review.
Administration Action Continues
Today, the Administration also announced a series of efforts to protect Americans from the delta and omicron COVI-19 variants. The plan includes:
- Expansion of boosters for all adults;
- Vaccination of children;
- Expanding free, at-home testing; and
- Stronger public health protections for travel and in places of employment.
