Director, Global Employment Policy & Special Initiatives, U.S. Chamber of Commerce
December 14, 2021
Courts are Ruling on Vaccine Mandates: What Employers Need to Know.
The Biden Administration’s Path out of the Pandemic Plan announced last summer mandated, and directed various agencies, to require vaccinations for four specific groups: Federal employees, employees of federal contractors, employees of companies with at least 100 employees, and employees of healthcare providers receiving funds from Medicare or Medicaid.
- The contractor executive order and guidance required employees of all federal contractors and subcontractors to be fully vaccinated (all shots plus two weeks) by January 18.
- The Occupational Safety and Health Administration (OSHA)’s Emergency Temporary Standard (ETS), released on November 5, originally required all employers with 100 or more employees to ensure their employees are fully vaccinated (all shots taken) by January 4, although it allowed employers to offer employees a weekly testing option as an alternative.
- Finally, The Center for Medicare & Medicaid Services (CMS)’s interim final rule, also released November 5, required vaccinations for most workers employed by a health care center that receives Medicare or Medicaid reimbursements.
Since President Biden’s announcements of the various vaccine mandates, multiple lawsuits have been filed by various parties. Listed below is the current status of these lawsuits.
As of Tuesday, January 25, 2022.
- The Bottom Line: OSHA is withdrawing the rule as an enforceable ETS, but the rule will still serve as a proposed rule. OSHA will continue with the rulemaking process as it considers a permanent standard. Stakeholders can submit comments at www.regulations.gov, under Docket No. OSHA-2021-0007.
- OSHA has moved to dismiss the Sixth Circuit appeal as moot in light of its withdrawal of the ETS.
- OSHA’s motion to dismiss will not necessarily be granted. Among other considerations, there may or may not be potential liability for any past noncompliance.
- On Thursday, January 13 the OSHA ETS was blocked by the U.S. Supreme Court. By a 6-3 majority, the Court reinstated the stay that had been dissolved by the Sixth Circuit panel. The majority opinion was issued per curiam with a concurrence by Justices Gorsuch, Thomas, and Alito. Justices Breyer, Sotomayor, and Kagan dissented.
The case is now back in the Sixth Circuit, which will determine whether the case is moot and, if it is not moot, make a final determination on the merits of the challenge consistent with the Supreme Court's decision. The current schedule for the merits briefing in the Sixth Circuit is as follows:
- January 31, 2022: DOJ’s opening brief
- March 2, 2022: State’s response due
- March 23, 2022: DOJ’s reply due
Federal Contractor Mandate
- The Bottom Line: The federal contractor mandate has been enjoined nationwide.
- DOJ has appealed all the primary injunctions of the federal contractor mandate. The courts in which appeals have been filed include the Eastern District of Missouri, the Western District of Louisiana, the Middle District of Florida.
- On Friday, January 21, Oklahoma filed a supplemental brief in the Western District of Oklahoma, arguing that the Supreme Court ETS and CMS decisions support a preliminary injunction. The DOJ’s response is due Friday, January 28.
On January 5, the U.S. Court of Appeals for the Sixth Circuit refused to stay an injunction blocking the federal contractor mandate from going into effect, pending appeal. The court determined, among other things, that the government was unlikely to prevail on the merits of its appeal. The Sixth Circuit is the second court of appeals to leave an injunction in place pending appeal. The merits briefing schedule is as follows:
- January 31, 2022: The DOJ’s opening merits brief is due.
- March 2, 2022: States’ response brief is due.
- March 23, 2022: The DOJ’s reply brief is due.
On December 28, the U.S. Court of Appeals for the Eleventh Circuit denied the States’ motion for initial hearing en banc of the merits phase of the Government’s appeal of the nationwide PI of the federal contractor mandate. The government filed its opening merits brief on January 18. The schedule for the merits briefings of the DOJ’s appeal of the nationwide preliminary injunction is as follows:
- February 8, 2022: States’ and the Associated Builders and Contractor’s response briefs are due.
- February 22, 2022: The DOJ’s reply brief is due.
- Oral argument on the merits of the federal contractor mandate is tentatively scheduled for the week of April 4, 2022.
- In the District of Arizona, the law enforcement and firefighters’ union local (plaintiff) filed its reply brief and the court ordered the unmasking of a John Doe plaintiff. On January 4, the DOJ filed its motion to dismiss the case. The parities in this case filed supplementals briefs addressing the Supreme Court’s decisions in the ETS and CMS decisions on January 19.
- On January 24, the Associate General Contractors filed a notice in the Northern District of Texas arguing that the Southern District of Georgia clarification order “reinforces the fact that Plaintiffs’ members are not adequately protected by the injunction in Georgia.” They argue that the Government is trying to get the contract clause into as many federal contracts as possible so that, if the Southern District of Georgia injunction is overturned or modified, those contractors are now stuck with having to do as the Task Force directs, which includes vaccination.
- The Government might continue to attempt to insert into contracts clauses that require adherence to the Task Force guidance on the idea that they can still enforce the part of that Task Force Guidance that requires masking and distancing in certain circumstances.
- The BottomLine: The U.S. Supreme Court upheld the CMS rule.
- On January 13, The Supreme Court issued their decision on the CMS Rule. By a 5-4 decision, the Court stayed the injunctions of the CMS mandate. Justices Breyer, Sotomayor, Kagan, Roberts, and Kavanaugh voted to uphold the mandate while Justices Thomas, Alito, Gorsuch, and Coney Barrett dissented.
- The Supreme Court ruled that the preliminary injunctions granted by the Eastern District of Missouri and by the Western District of Louisiana are stayed pending the dispositions of the Government’s appeal in the U.S. Court of Appeals for the Eighth Circuit and the U.S. Court of Appeals for the Fifth circuit, respectively.
As these cases continue to make their way through the courts, the Chamber will continue to update this posting. Detailed information on the OSHA ETS can be found here.