Legal challenges to federal vaccine mandates continue

published in McAfee & Taft EmployerLINC Alert | December 6, 2021

To date, legal challenges to three federal vaccine mandates are pending in courts across the country. The following is an update regarding the status of those lawsuits and what types of employers are impacted by that litigation.

CMS vaccine mandate

Effective November 29, 2021, the CMS vaccine mandate applicable to healthcare workers was temporarily stayed by a federal judge in Missouri. This temporary injunction applies in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. On November 30, a Louisiana federal judge issued a temporary injunction against the CMS vaccine mandate nationwide, except for those states already covered by the Missouri order. Accordingly, the requirements set forth in the CMS regulations are temporarily on hold until these lawsuits can be fully adjudicated.

Federal contractor mandate

Also on November 30, the federal contractor vaccine mandate was temporarily stayed by a Kentucky federal judge. This preliminary injunction only applies in Kentucky, Ohio, and Tennessee.

Employer mandate

As for the OSHA Emergency Temporary Standard (ETS), which applies to employers with 100 or more employees, the Sixth Circuit recently set briefing deadlines in a scheduling order. OSHA had already filed an emergency motion to dissolve the stay that was issued by the Fifth Circuit. All motions to join OSHA’s motion or file a motion to modify, revoke, or extend the stay were due no later than November 30. All responses to those motions must be filed by tomorrow, December 7, and any replies must be filed by December 10.

While OSHA has publicly stated that it will comply with the stay, its position has been that employers should prepare to comply with the ETS and that OSHA will succeed in litigation challenging the ETS. To be sure, OSHA previously advised businesses during a press briefing to move forward with compliance and stated that it was heading toward the same timeline notwithstanding the stay.

Nevertheless, based on the schedule that the Sixth Circuit has put in place, the issue of the stay will not be fully briefed until this Friday, December 10, and the court will not render a decision until some point thereafter. Accordingly, employers can safely assume that the December 6 requirements of the ETS will not have to be implemented by today. It is possible, however, that prior to December 10 (or soon after December 10), the Sixth Circuit could lift the stay. In that instance, compliance could be required immediately or in an expedited manner.

We understand that the current and ever-evolving status of litigation surrounding these mandates is frustrating and causes uncertainty, and we will continue to provide you updates as the litigation develops. In the meantime, if you need guidance or have any compliance questions, please contact your McAfee & Taft Labor & Employment Group attorney.