As noted in our  recent blog, OSHA announced in mid-November, 2021 that it was suspending activities related to the enforcement of its COVID-19 Emergency Temporary Standard (“ETS”) – which would have required businesses with more than 100 employees to either implement vaccine mandates or to require weekly testing and mask wearing for unvaccinated workers – much to the relief of private businesses around the country. However, OSHA's pause on its own vaccine mandate did not apply to an executive order issued by President Biden pertaining to a vaccine mandate for federal contractors and did not apply to a vaccine mandate issued by the Centers for Medicare & Medicaid Services (CMS) for certain healthcare facilities. For this reason, employment practitioners have been paying close attention to litigation surrounding these other two vaccine mandates.

On November 30, 2021, U.S. District Court Judge Gregory Van Tatenhove of the Eastern District of Kentucky preliminarily enjoined the United States government from enforcing President Biden's vaccine mandate for federal contractors in Kentucky, Ohio, and Tennessee. This decision comes on the heels of two federal courts preliminarily enjoining an Interim Final Rule issued by CMS mandating COVID-19 vaccination for healthcare providers in covered facilities. The first CMS injunction was issued by Eastern District of Missouri Judge Matthew Schelp and enjoined enforcement in ten states – Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire. The second injunction, issued by a federal judge in Louisiana, temporarily blocked CMS' vaccine mandate for healthcare workers in 14 additional states — Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Ohio, Kentucky and Louisiana. Of course, these decisions, following the Fifth Circuit's November 12, 2021 order staying enforcement of OSHA's emergency temporary “vaccine or test” standard, continue a growing trend of successful challenges to federal vaccine requirements.

All three federal judges viewed the respective mandates as lacking in congressional authority. For instance, regarding the federal contractor mandate, Judge Van Tatenhove held that Congress's delegation of procurement authority to the President did not provide grounds for mandating vaccination. Judge Schelp, enjoining the CMS mandate, similarly noted that agencies require congressional authorization to act. He agreed that Congress had given the Secretary of Health and Human Services general authority to administer Medicare, Medicaid, and the health and safety of its recipients, but held that Congress provided the Secretary with no clear authorization to impose a vaccine mandate on covered medical facilities. Particularly clear authorization was necessary, he opined, because the CMS vaccine mandate was an agency action of profound economic and political significance and because it significantly altered the balance of federal and state authority.

Should the Biden administration appeal either of these decisions, the appeals would be heard by the Sixth and Eighth Circuit courts, respectively.

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