December 20, 2021


Jason A. Levine, Gillian H. Clow, and Giles Judd


The top COVID-19 litigation developments all involve vaccine mandates, namely: the Sixth Circuit’s dissolution of a prior Fifth Circuit stay order that enjoined OSHA’s employer vaccinate-or-test mandate; the Supreme Court’s refusal to enjoin New York State’s vaccination requirement for healthcare workers; the issuance of nationwide injunction against President Biden’s vaccine mandate for federal contractors; and the Fifth Circuit’s denial of an injunction against United Airlines’ vaccine mandate for its employees.

1. Sixth Circuit Dissolves Fifth Circuit Order Halting Enforcement of President Biden’s “Vaccinate-or-Test” Requirement

Overview: Since our last update, the Sixth Circuit rejected a petition for initial en banc review filed by a coalition of 27 states, and the panel then dissolved the Fifth Circuit’s stay of the vaccine mandata.

Sixth Circuit Denial of Initial En Banc Review: On November 22, 2021, several States filed a petition in the consolidated litigation over the OSHA employer vaccine mandate. The States asked the Sixth Circuit to grant initial en banc review because the case before the court “involv[es] a question of exceptional importance,” namely whether OSHA has the authority under its emergency powers to mandate vaccinations for “a risk with no special relationship to work.”

In an order issued on December 15, 2021, the Sixth Circuit denied the petition for initial en banc review in an 8-8 decision. Although the order provides no analysis, Judge Moore wrote a concurring opinion, which notes that “the case already sits before three thoughtful, independent judges on the panel who have spent the past weeks steeped in this matter. We properly leave the matter in their hands.” At the same time, the order prompted two dissents. Chief Judge Sutton wrote a dissent, joined by seven other judges, that focused on the need for Congress to have provided “unmistakable legislative support” for “[s]uch broad assertions of administrative power.” Judge Bush wrote a separate dissent noting that “Congress likely has no authority under the Commerce Clause to impose, much less to delegate the imposition of, a de facto national vaccine mandate upon the American public.”

Sixth Circuit Dissolution of Stay: On December 17, 2021, the Sixth Circuit panel issued a 2-1 order dissolving the Fifth Circuit’s stay that enjoined enforcement of the mandate. Most importantly, the panel found that the challengers had “little likelihood” of prevailing on the merits. The court first concluded that the stay was within the scope of OSHA’s statutory authority because the coronavirus is an “agent” that is “toxic” or “physically harmful” under the OSHA authorizing statute, and because other federal statutes empowered OSHA to enact standards concerning infectious diseases in the workplace. For similar reasons, the court also held that the vaccine mandate was not an improper expansion of OSHA’s power. With respect to the terms of the mandate itself, the court determined that the coronavirus pandemic does indeed constitute an “emergency” that poses “grave danger” to workers, and that the mandate is “necessary” to protect workers. The Sixth Circuit also rejected the challengers’ constitutional arguments under the Commerce Clause and the non-delegation doctrine. As for the remaining stay factors, the court concluded that the challengers did not demonstrate that any potential – in the court’s view, “speculative” – injury from lifting the stay outweighed the public (or governmental) interest in doing so.

In a lengthy dissent, Judge Larsen stated that she “doubts” the Secretary of Labor satisfied the statutory test for an ETS, concluding that there was an insufficient showing of “necessity” or “grave danger” that warranted such a sweeping mandate. And with respect to the expansion of OSHA’s authority, Judge Larsen reasoned that “[h]ere, the Secretary asks for maximum authority and maximum discretion; he wants to issue a rule of national import, covering two-thirds of American workers, and he wants to do it without clear congressional authorization, without even public notice and comment, and with a capacious understanding of necessity. Such a combination of authority and discretion is unprecedented, and the Secretary is unlikely to show that he has been granted it.”

Our Take: The Sixth Circuit’s dissolution of the stay, particularly over a detailed dissent and against the backdrop of an 8-8 split decision over granting initial en banc review, is almost certain to result in a new petition for en banc review or certiorari in the U.S. Supreme Court. The battle over President Biden’s workplace vaccine mandate is likely to continue well into 2022 although, for the time being, enforcement the mandate is no longer stayed.

2. U.S. Supreme Court Denies Application to Enjoin New York’s Vaccination Requirement for Healthcare Workers

Overview: On December 13, 2021, the Supreme Court denied applications for injunctive relief brought by two groups of healthcare workers, requesting that the Court halt enforcement of New York’s requirement that healthcare workers obtain the COVID-19 vaccine.

Background: New York State requires healthcare workers to receive a COVID-19 vaccine. Those who do not comply risk losing their jobs and their eligibility for unemployment insurance benefits. The mandate has an exemption for medical reasons, but not for objections based on sincerely held religious beliefs. The petitioners here argue that their religious opposition to abortion prevents them from being vaccinated because all three of the vaccines available to them were tested on or developed with cells descended from aborted fetal cells. In two separate suits, the petitioners challenged the mandate on First Amendment grounds. A district court entered an injunction in one suit, but a second district court declined. The Second Circuit issued a combined judgment that rejected all claims and dissolved the injunction.

Decision and Dissent: Justice Gorsuch – joined by Justice Alito – dissented from the Supreme Court’s denial of application for injunctive relief. In his dissenting opinion, Justice Gorsuch explained that the Court must first determine whether the petitioners would be harmed if the mandate remained in effect. He determined that petitioners’ ability to freely exercise their religion would undoubtedly be harmed. He then turned to whether New York had shown whether the law serves a compelling interest and employs the least restrictive means of doing so. He observed that New York presented no evidence that granting a religious exemption to the mandate would make any meaningful difference to the protection of public health. Justice Thomas also would have granted the application, but he neither wrote separately nor joined Justice Gorsuch’s opinion.

Our Take: The Supreme Court’s denial of the request for injunctive relief does not mean it will necessarily deny certiorari or reject petitioners’ challenge to the New York mandate on the merits of their constitutional claim. It means only that the mandate will remain in force pending the final determination before the Court. This case intersects two lines of jurisprudence the Court may now need to reconcile: one line generally favoring COVID-19 regulations and mandates, and the other generally requiring deference to sincerely held religious beliefs.

3. Georgia Judge Blocks Biden Administration’s Vaccine Mandate for Federal Contractors

Overview: A federal judge in the Southern District of Georgia enjoined the Biden Administration from enforcing its vaccine mandate for all federal contractors and subcontractors in any state or territory, noting that, in issuing Executive Order 14042, the President likely “exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act” (“FPASA”).

Background: On September 9, 2021, President Biden issued Executive Order 14042, which mandated that the Safer Federal Workforce Task Force (“Task Force”), established by Executive Order 13991, provide guidance to ensure “adequate COVID-19 safeguards” for federal contractors and subcontractors. On September 24, this Task Force issued its guidance, which required that all “covered contractors” be fully vaccinated by January 18, 2022, unless otherwise entitled to an accommodation. The State of Georgia, along with several other States, their governors, and various state agencies, as well as Intervenor Associated Builders and Contractors, Inc. (“ABC”), sought injunctive relief against enforcement of Executive Order 14042.

In granting Plaintiffs’ motions, U.S. District Judge Baker held that the President’s order likely “goes far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting,” as authorized by Congress under the FPASA, “and instead, in application, works as a regulation of public health.” Further, given the geographic scope of Intervenor ABC’s membership, and the level of their involvement in federal contracts, Judge Baker found it necessary to issue the injunction with “nationwide applicability.”

Our Take: Although this decision is certain to be challenged, the immediate effect is that the Biden administration’s vaccine mandate for federal contractors and subcontractors has been blocked nationwide. Given the different roles played by the federal and state governments under the Constitution, however, we would not expect the outcome of this case to impact, say, state vaccine mandates. And that may example, for example, the different outcome here compared to the Supreme Court’s denial of an application to enjoin New York’s vaccine requirement for healthcare workers (despite its alleged constitutional infirmities).

4. Fifth Circuit Declines to Enjoin United Airlines from Enforcing Vaccine Mandate Pending Employee Appeal

Overview: In a split decision, the Fifth Circuit declined to enjoin United Airlines from enforcing its vaccine mandate pending appeal by a proposed class of employees.

Background: We previously reported that U.S. District Judge Pittman denied a preliminary injunction sought by employees of United Airlines who had been placed on indefinite unpaid leave for refusing to comply with the company’s vaccine mandate, given their medical or religious requests to be exempted. Even though Judge Pittman recognized that Plaintiffs were losing income, he held that this injury did not constitute irreparable harm that warranted a preliminary injunction.

The Fifth Circuit has now denied the employees’ motion for an injunction pending appeal, although it did agree to expedite the appeal. In a lengthy dissent, Judge Ho stated that he “would grant the injunction pending appeal,” arguing that the irreparable harm suffered by an employee of faith who fails to acquiesce to United’s mandate is not a loss of money, but the “self-doubt” as to “whether his faith has hurt his family, and whether living up to his commitments was worth sacrificing the interests of his loved ones.”

Our Take: The Fifth Circuit will now address the merits of this case, and it has set the case for oral argument on January 3, 2022. Given the Texas Governor’s recent Executive Order prohibiting vaccine mandates for any entity, public or private, within the State, and the Biden administration’s currently-enjoined federal mandate for private sector workers, we expect the ensuing constitutional showdown to prompt strong arguments and opinions.

Jason Levine is a commercial and antitrust litigation partner in the Washington, D.C. office of Alston & Bird LLP. Gillian Clow and Giles Judd are litigation associates at the firm.