Over the past several weeks, vaccine mandates have been released by the Occupational Safety and Health Administration ("OSHA"), Centers for Medicare and Medicaid Services ("CMS"), and the White House. Each of these mandates has subsequently been challenged in court. This Alert provides an update on where enforcement of each mandate currently stands.
OSHA's Emergency Temporary Standard
On November 4, 2021, OSHA released its COVID-19 Vaccination and Testing Emergency Temporary Standard ("ETS"). See OSHA ETS Client Alert. The ETS applies broadly to all employers with a total of 100 or more employees and was set to require most employees to either be fully vaccinated or submit to weekly testing by January 4, 2022.
On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit issued a temporary stay, halting implementation of the ETS pending consideration of a challenge to its enforceability. The Fifth Circuit extended the stay on November 12, 2021. In ordering a continuation of the stay, the Fifth Circuit directed OSHA to take "no steps to implement or enforce the Mandate until further Court Order."
Additionally, as a result of multiple pending challenges to the ETS, on November 16, 2021, the U.S. Court of Appeals for the Sixth Circuit was selected to handle a group of consolidated cases challenging the ETS, including the case initially ruled on by the Fifth Circuit. The briefing schedule for the consolidated cases indicates the Sixth Circuit will not rule on the challenges and the Department of Labor's motion to lift the stay until after December 10, 2021.
In response to these Challenges, OSHA has stated it has "suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation."
CMS's Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule
On November 4, 2021, CMS released its "Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule" ("IFR"). See CMS IFR Client Alert. The IFR applies to Medicare and Medicaid-certified provider and supplier entities that have Conditions or Requirements of Participation. The IFR was set to require covered staff to have either received at least the first dose of a COVID-19 vaccine or requested a lawful exemption by December 5, 2021. The IFR was further set to require that covered staff be fully vaccinated by January 4, 2022, unless they had been granted a lawful exemption.
On November 29, 2021, the Eastern District of Missouri issued a preliminary injunction preventing enforcement of the IFR in ten states including: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.
On November 30, 2021, the Western District of Louisiana similarly issued a preliminary injunction blocking enforcement of the IFR nationwide except for the ten states listed above that already face an injunction order.
The Biden Administration has already noticed appeals in both cases, meaning both injunctions will now be challenged on appeal. The injunction issued by the Eastern District of Missouri will be appealed to the Eighth Circuit, while the injunction issued by the Western District of Louisiana will be appealed to the Fifth Circuit.
In response to these challenges, CMS stated that while it "remains confident in its authority to protect the health and safety of patients in facilities certified by the Medicare and Medicaid programs, it has suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation."
Federal Contractor Mandate
On September 9, 2021, President Biden issued Executive Order 14042 requiring a clause to be incorporated into covered federal contracts and contract-like instruments that requires covered contractors to comply with all guidance published by the Safer Federal Workforce Task Force ("Task Force"). Pursuant to guidance from the Task Force initially issued on September 24, 2021, and updated November 10, 2021, covered contractor employees were set to be required to be fully vaccinated against COVID-19 by January 18, 2022, unless legally entitled to an accommodation.
On November 30, 2021, the Eastern District of Kentucky granted a preliminary injunction against the vaccine mandate for federal contractors in Kentucky, Ohio, and Tennessee. There have been similar challenges to the federal contractor vaccine mandate in federal courts in Florida, Missouri, Oklahoma, Georgia, and Texas. However, the injunction issued by the Eastern District of Kentucky is the only injunction that has been issued thus far.
Next Steps for Clients Covered by a Vaccine Mandate
With uncertainty surrounding whether these mandates will ultimately be enforceable and if so, when they will go into effect, entities covered by one of these mandates should continue to monitor these legal challenges. As of this writing, it appears to be reasonable for employers subject to the ETS or IFR to take a wait-and-see approach. Federal contractors in most states are still facing the prospect of their mandate moving forward as planned, and should continue their preparations. We will continue to provide updates as developments warrant.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.