Status of Vaccine Mandate Litigation
December 23, 2021
UPDATED (12/23/2021):
Wednesday evening, the Supreme Court agreed to take up the OSHA ETS mandate case from the Sixth Circuit and the CMS healthcare worker mandate cases from the Fifth and Eighth Circuit. Oral arguments for both mandates will be held on Jan. 7, 2022, before the Court. Because the Court’s decision to hear these mandate cases occurred via emergency applications, the decisions will be issued relatively quickly after oral arguments. The Supreme Court did not determine that the OSHA ETS mandate should be stayed in the interim pending oral arguments and the Court’s determination. OSHA has yet to announce whether it will be delaying the enforcement dates it set after the Sixth Circuit dissolved the stay of the ETS mandate. As a result, employers should continue to move forward to comply with the OSHA ETS requirements for the Jan. 10, 2022, deadline set by OSHA for enforcement purposes. Those requirements include:
• Developing and publishing: (a) a written mandatory vaccination policy or (b) a written policy requiring that employees either (i) be fully vaccinated or (ii) provide proof of weekly testing and wear a face covering at work.
• Surveying, obtaining, and documenting each employee’s vaccination status. The documentation requirement requires a roster of all employees which clearly indicates whether the employee is fully or partially vaccinated, not fully vaccinated because of a medical or religious accommodation, or not fully vaccinated because they have not provided acceptable proof of their vaccination status.
• Providing each employee with reasonable time during work hours to obtain their primary vaccination dose(s), including up to four hours of paid time, including travel. In addition, employers must provide reasonable time and paid sick leave for employees to recover from the side effects of the vaccinations.
• Requiring employees to promptly notify the employer of positive test results or a COVID-19 diagnosis by a licensed healthcare provider and then immediately excluding such employees from the workplace. Make sure to review the processes under the OSHA ETS and CDC on the requirements of returning to work.
• Ensuring that unvaccinated employees wear compliant face coverings (fully covering the nose and mouth) indoors or in a vehicle for work with another person. The OSHA ETS does provide some exceptions to this requirement.
• Providing employees with the Key Things to Know about COVID-19 Vaccine: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html
• Providing additional information regarding reporting requirements and potential criminal penalties for knowingly supplying false statements or documentation. We will continue to monitor these cases and will provide updates after oral arguments in these cases, as well as in the event the Court issues further guidance before scheduled oral arguments.
Status of Vaccine Mandate Litigation
This past November, multiple courts issued orders halting the implementation of various vaccination mandates promulgated by agencies within the Biden Administration. While the legal process for reviewing these mandates continues, they all face scrutiny and challenges in the federal courts. To help keep track of these various cases, we have provided a brief summary of the current status of the challenges to the federal government’s vaccine mandates. Please note that, due to the ongoing nature of these proceedings, the status of these cases may change quickly.
OSHA ETS Vaccination Mandate: The Sixth Circuit
OSHA’S Emergency Temporary Standard (“ETS”) orders all employers with more than 100 employees to be vaccinated or subject to regular COVID-19 testing while also wearing a mask for unvaccinated employees (the “OSHA Mandate”). A number of states have challenged OSHA’s Mandate in federal court. The states claimed that the OSHA Mandate exceeded OSHA’s authority and was constitutionally infirm. Based on these arguments, the Fifth Circuit issued a nationwide injunction of the OSHA Mandate on Nov. 12, 2021.
Due to the unique procedure for judicial review of the OSHA Mandate, a lottery was held to determine which circuit court would review the OSHA Mandate and decide whether to uphold or strike down the Fifth Circuit’s stay. Currently in the process of determining a briefing schedule to hear arguments on the OSHA Mandate is the lottery-selected Sixth Circuit. Please note that even if the Sixth Circuit issues a decision on the OSHA Mandate, the ultimate issue will likely be decided by the U.S. Supreme Court.
Centers for Medicare & Medicaid Services (CMS) (Healthcare Employees) Vaccination Mandate: The Fifth & Eighth Circuits
CMS issued a vaccination mandate for most Medicare and Medicaid-certified providers and suppliers (the “CMS Mandate”). Numerous states have challenged this mandate as unlawful. Based on the decisions of the courts discussed below, the CMS Mandate has been stayed nationwide. We expect that various appeals courts will review these decisions, then very likely, the Supreme Court.
On Nov. 29, 2021, the U.S. District Court for the Eastern District of Missouri was the first court to issue a stay of the CMS Mandate in Missouri v. Biden, Case No. 4:21-cv-0132 (referred to as the “Missouri Decision”). Rather than issue a nationwide injunction, the Missouri Decision limited the scope of the stay of the CMS Mandate to the states that had sought the stay in the first place (and which are the plaintiffs in that case): Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.
The Federal Government has already appealed this decision to the Eighth Circuit of Appeals. The Eighth Circuit will implement a briefing schedule to review the Missouri Decision. A second court, the U.S. District Court for the Western District of Louisiana (Louisiana v. Becerra, Case No. 3:21-CV-03970), also issued a stay of the CMS mandate, albeit a day after the Missouri Decision was announced (referred to as the “Louisiana Decision”). The Louisiana Decision stayed the CMS Mandate for the remaining states not covered by the Missouri Decision.
As in the Missouri case, the Federal Government has already sought an appeal of the Louisiana court’s decision. The Fifth Circuit—which was responsible for issuing the stay of the original OSHA Mandate—will hear the appeal. As a practical matter, we expect that there will be two tracks of appeals on the CMS Mandate. The first, at the Eighth Circuit deciding the Missouri Decision for the ten states involved in that case, and the latter appeal, the Fifth Circuit, will decide the Louisiana Decision, which would affect the remaining states.
Federal Contractor Vaccine Mandate: The Sixth Circuit
In addition to the OSHA and CMS Mandates, the Safer Federal Workforce Task Force and the Office of Management and Budget issued a vaccination mandate that would apply to all newly awarded federal contracts. It states any employee (full-time or part-time) of a contractor working in connection with a federal contract, must get vaccinated (the “Federal Contractor Mandate”). Kentucky, Ohio, and Tennessee filed a lawsuit in the Eastern District of Kentucky seeking a stay of this mandate (Kentucky v. Biden, No. 3.21-cv-00055.). The district court issued its stay of the Federal Contractor Mandate on Nov. 30, 2021. The scope of the mandate is limited to all federal contracts in Kentucky, Ohio, and Tennessee. As of Dec. 1, the Federal Government has not yet sought review on appeal, but any such appeal would be heard by the Sixth Circuit. Although the Federal Contractor Mandate may be similar to the OSHA Mandate—also being heard by the Sixth Circuit—it is unlikely that the Federal Contractor Mandate would be decided jointly with the OSHA Mandate. Rather, there will be two separate appeals—one for the OSHA Mandate and the other for the Contractor Mandate.
UPDATE: On Dec. 7, 2021, a federal judge for the U.S. District Court in Georgia issued a nationwide injunction preventing the U.S. government from enforcing the Federal Contractor Mandate. This lawsuit was filed by the states of Georgia, Alabama, Indiana, Kansas, South Carolina, Utah, and West Virginia amongst other trade groups.
Summary
Employers need to continue to be vigilant in preparing for any of these specific mandates. The timing of each of these cases will create potential problems for employers in the rollout of any vaccine mandate. Each employer needs to consider whether to move forward or temporarily halt the policy rollout. Currently, there are three vaccination mandates that have been challenged in the federal court system; all three have been stopped via preliminary injunctions. The OSHA Mandate is currently stayed nationwide, pending further review in the Sixth Circuit. The CMS Mandate is also stayed nationwide, although review of the stay is pending before two different circuit courts (the Fifth and Eighth Circuits)—the Fifth Circuit’s review will affect more states, but the Eighth Circuit’s review will affect Iowa directly. And finally, the Federal Contractor Mandate, as of Dec. 7, 2021, has been stayed nationwide. These decisions have all occurred within a short time period, as a result of the approaching deadline for the mandates. Future updates may also occur quickly and we will continue to monitor these cases in order to best advise you going forward.
Attorney Contributors
Terri C. Davis
Terri C. Davis is an Attorney and Senior Vice President at Shuttleworth. She focuses her practice in Employment Law and Litigation, including employment related litigation, commercial litigation, product liability, and the handling of administrative trials, including utilities cases and workers compensation. She advises employers on employment matters, and assists with policy review and development, as well as handling of investigations and complaints, both internal and before civil rights commissions. She serves as chair of the firm’s Labor & Employment Law Practice Group.
Mark P. A. Hudson
Mark Hudson is an Attorney and Senior Vice President at Shuttleworth & Ingersoll, P.L.C. Mark’s work focuses on labor and employment compliance and counseling (including personnel policies and decisions, workplace investigations, affirmative action program compliance, wage and hour advice, and general employment counseling), labor and employment litigation (including equal opportunity, wrongful discharge, discrimination, sexual harassment and defense of employment-related claims), workplace training (including sexual harassment, workplace civility, bystander intervention, and a myriad of other training topics for supervisor, employee, and human resource professionals), privacy and data security compliance and litigation, and fair housing litigation and compliance.
Jackson C. Blais
Jackson C. Blais is an Attorney at Shuttleworth & Ingersoll, P.L.C. His legal work primarily focuses on litigation and appellate law.While attending Notre Dame Law School, Jackson served as the Executive Notes Editor for the Notre Dame Law Review and as a brief writer on the Moot Court Showcase Team. After graduating law school, Jackson served as a law clerk to the Honorable Chief Judge Thomas D. Schroeder in the United States District Court for the Middle District of North Carolina in Winston-Salem.