Senior Manager, Employment Policy
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 early this 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 requires 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 an employer may allow employees to submit weekly test results as an alternative. Because of the litigation, employers now have until February 9 to be in compliance with this requirement.
- Finally, The Center for Medicare & Medicaid Services (CMS)’s interim final rule, also released November 5, requires 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 10, 2022.
- The Bottom Line: The OSHA ETS is in effect at this time.
- The U.S. Supreme Court heard arguments in the OSHA ETS case on Friday, January 7. The Supreme Court did not include any OSHA orders in the Order List published on Monday, January 10. This means OSHA may issue citations for noncompliance of the ETS involving the administrative provisions (surveying employees to determine who is vaccinated, requiring non-vaccinated employees to wear masks, and communicating a company policy on OSHA’s ETS). To account for the litigation uncertainty, OSHA has stated that citations for noncompliance with the standard’s testing requirements will not be issued before February 9 “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
On December 15, the U.S. Court of Appeals for the Sixth Circuit denied initial en banc review by an 8-8 vote. Two days later, on December 17, a Sixth Circuit panel dissolved the stay issued by the Fifth Circuit in a 2-to-1 ruling, allowing the ETS to go into effect. Fourteen different applications for a stay have already been filed in the U.S. Supreme Court. The schedule for the merits briefing 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. The government has not asked the Supreme Court for relief from that injunction despite the U.S. Court of Appeals for the Eleventh Circuit having denied a stay on December 17.
- 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.
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 schedule for the merits briefings of the DOJ’s appeal of the nationwide preliminary injunction is as follows:
- January 12, 2022: DOJ’s opening brief is due
- 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.
- The Government also has not filed an application for a stay of the preliminary injunctions issued from either the Eastern District of Kentucky, Western District of Louisiana, Eastern District of Missouri, or the Middle District of Florida. This is likely because the Government is awaiting the outcome of the ETS and CMS cases before the Supreme Court.
- 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.
- On December 12, a new suit was filed in the Northern District of Texas by the Associated General Contractors and TEXO, the Construction Association. The plaintiffs also filed a preliminary injunction motion on December 14, seeking a nationwide injunction. The Government argued that there is no urgency to decide the preliminary injunction motion in light of the current nationwide stay of the federal contractor mandate, and the DOJ filed its opposition to the Plaintiff’s preliminary injunction on January 4.
- The Bottom Line: The CMS rule has been enjoined in some jurisdictions.
- The U.S. Supreme Court heard arguments in the CMS regulation case on Friday, January 7. The Supreme Court did not include any orders addressing the CMS case in the Order List published on Monday, January 10.
- A panel of the U.S. Court of Appeals for the Eighth Circuit by a 2-1 vote denied DOJ’s motion for a stay pending appeal, thereby leaving in place the preliminary injunction that covers AR; AK; IA; KS, ND; NE; NH; MO; SD; and WY.
- In a per curiam opinion, the U.S. Court of Appeals for the Fifth Circuit panel upheld the stay in light of the court’s recent opinion regarding the OSHA ETS stay. However, the panel modified the Western District of Louisiana’s nationwide preliminary injunction so that it now only applies to the thirteen plaintiff states.
- The North District of Texas had stayed proceedings pending the U.S. Court of Appeals for the Fifth Circuit’s consideration of the Western District of Louisiana’s preliminary injunction. After the Fifth Circuit ruled, Judge Kacsmaryk held an emergency telephone conference and then issued a preliminary injunction enjoining the CMS mandate within Texas. On January 5, the DOJ moved to stay proceedings pending the Supreme Court and Fifth Circuit’s reviews.
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.