Updated December 9, 2021: A federal court in Georgia had issued a nationwide injunction preventing the federal contractor COVID-19 vaccination requirements from the Safer Federal Workforce Task Force from taking effect on schedule. As described below, all three federal vaccine mandates are now on hold nationwide pending judicial review.
Over the last two months, three arms of the federal government have issued guidance mandating COVID-19 vaccines for various groups of employees. Unsurprisingly, each of these mandates has been challenged in court. Some employers are waiting to see how these legal challenges will be resolved before implementing any policies; others have forged ahead with their own internal vaccination rules, but are following these cases to ensure they are in compliance if and when the time comes.
The status of these mandates will change rapidly as various courts consider arguments for and against them. For now, here is the status of the three federal COVID-19 vaccination mandates as of this alert.
Occupational Safety and Health Administration's Emergency Temporary Standard
The Occupational Safety and Health Administration (OSHA) published an Emergency Temporary Standard (ETS) on November 5, 2021. The ETS mandated COVID-19 vaccination or testing for employees of large employers (those with 100 or more employees). Numerous lawsuits were filed challenging the ETS. On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit (where one such lawsuit was pending) issued a nationwide stay on the ETS. The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." In accordance with this decision, OSHA announced it would suspend enforcement and implementation of the ETS for now. Absent the stay, employers would have been required to comply with portions of the ETS on December 5, 2021.
The numerous lawsuits challenging the ETS were filed in many courts across the country; they have now been consolidated into a single proceeding, which will be heard by the U.S. Court of Appeals for the Sixth Circuit. OSHA has requested that the Sixth Circuit review the Fifth Circuit's stay, asking that the court either dissolve it entirely or modify it so that certain portions of the requirement (such as masking and testing) can remain in effect. The Sixth Circuit has not issued a ruling regarding the stay yet. If the stay is lifted, employers could still be required to comply with all aspects of the ETS by January 4, 2022.
At the same time, various litigants have filed petitions with the Sixth Circuit requesting initial en banc review – this request asks that the court bypass its typical panel review (where three judges would hear the case) and immediately have the matter decided by all active judges. The court is processing this request unusually quickly, but we do not know yet who or how many judges will hear the case.
Centers for Medicare & Medicaid Services Omnibus COVID-19 Health Care Staff Vaccination Rule
On November 5, 2021 (the same day as the OSHA ETS), the Centers for Medicare & Medicaid Services (CMS) issued an emergency regulation (the CMS Rule) requiring that eligible staff working at Medicare- or Medicaid-certified providers be fully vaccinated against COVID-19. Testing in lieu of vaccination was not permitted under the CMS Rule. A number of lawsuits were filed challenging the CMS Rule; to date these have not been consolidated and are proceeding separately.
On November 29, 2021, a federal court in Missouri blocked CMS from enforcing the vaccine mandate for healthcare workers in 10 states (Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire). The next day, a different federal court in Louisiana granted a request for a preliminary injunction that halts enforcement of the rule in the rest of the country (specifically excluding the 10 states subject to the other injunction).
The Biden administration has already notified the courts that it will appeal both decisions; the Louisiana court also acknowledged that "[t]his matter will ultimately be decided by a higher court than this one." The Missouri case has been appealed to the Eighth Circuit, and the Louisiana case will be heard by the Fifth Circuit (the same court that previously issued a stay on the OSHA ETS). For the moment, the CMS Rule is on hold across the entire country, but it appears that these two appeals will be decided separately. If either injunction is lifted on appeal, providers in the relevant states may again be required to enforce the vaccination mandate.
Safer Federal Workforce Task Force Guidance for Federal Contractors
On September 24, 2021, the first Guidance for Federal Contractors and Subcontractors (Guidance) was issued by the Safer Federal Workforce Task Force (Task Force). Broadly, the Guidance required covered federal contractors to mandate employee vaccinations and require employees to adhere to certain masking guidelines. As with the CMS Rule, testing in lieu of vaccination was not permitted. The Task Force later announced that the vaccination deadline for covered contractors would be pushed back from December 8, 2021 to January 18, 2022 to better align with the deadlines set out in the OSHA ETS.
On December 7, 2021, a federal court in Georgia issued a preliminary injunction halting enforcement of the federal contractor Guidance nationwide. The Georgia court’s order follows a similar order in Kentucky on November 30, 2021, which halted enforcement of the Guidance only in Kentucky, Ohio, and Tennessee. The Biden administration has already informed the court that it is appealing the Kentucky decision (that case will be heard in the Sixth Circuit) and is expected to appeal the Georgia decision to the Eleventh Circuit.