Last Updated December 27, 2021:
Over the last several months, three arms of the federal government have issued guidance mandating COVID-19 vaccines for various groups of employees. Unsurprisingly, each of these mandates has been challenged in court. Some employers are waiting to see how these legal challenges will be resolved before implementing any policies; others have forged ahead with their own internal vaccination rules, but are following these cases to ensure they are in compliance if and when the time comes.
The status of these mandates will change rapidly as various courts consider arguments for and against them. For now, here is the status of the three federal COVID-19 vaccination mandates as of this alert.
Occupational Safety and Health Administration's Emergency Temporary Standard
The Occupational Safety and Health Administration (OSHA) published an Emergency Temporary Standard (ETS) on November 5, 2021. The OSHA ETS mandates COVID-19 vaccination or testing for employees of large employers (those with 100 or more employees). Numerous lawsuits were filed challenging the ETS. On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit (where one such lawsuit was pending) issued a nationwide stay on the ETS. The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." In accordance with this decision, OSHA announced it would suspend enforcement and implementation of the ETS for now. Absent the stay, employers would have been required to comply with portions of the ETS on December 5, 2021.
The numerous lawsuits challenging the ETS were filed in many courts across the country; they were then consolidated into a single proceeding, which is being heard by the U.S. Court of Appeals for the Sixth Circuit. On December 17, the Sixth Circuit reviewed and dissolved the previously issued stay. This means, for now, that the OSHA ETS is in effect and is moving forward. OSHA has stated that it expects employers to be moving toward compliance with the standard and may begin issuing citations for noncompliance on February 9 (for the standard's testing requirement for unvaccinated workers) and January 10 (for all other requirements in the ETS).
The Sixth Circuit's decision to dissolve the stay drew an immediate appeal to the United States Supreme Court. The Supreme Court has announced it will hold a special session to hear arguments on the OSHA ETS (along with the CMS Rule) on January 7, 2022.
The timing of the Supreme Court hearing could complicate compliance for employers. If the Supreme Court does not issue a ruling before January 10, or if the Court ultimately upholds the Sixth Circuit's decision, employers that delay preparations while hoping for a revival of the stay could find themselves out of compliance with significant portions of the ETS, including its requirements to have a written COVID-19 policy and to maintain records of employees' vaccination status.
Centers for Medicare & Medicaid Services Omnibus COVID-19 Health Care Staff Vaccination Rule
On November 5, 2021 (the same day as the OSHA ETS), the Centers for Medicare & Medicaid Services (CMS) issued an emergency regulation (the CMS Rule) requiring that eligible staff working at Medicare- or Medicaid-certified providers be fully vaccinated against COVID-19. Testing in lieu of vaccination was not permitted under the CMS Rule. A number of lawsuits were filed challenging the CMS Rule; to date these have not been consolidated and are proceeding separately.
On November 29, 2021, a federal court in Missouri blocked the CMS COVID vaccine mandate for healthcare workers in 10 states. The next day, a different federal court in Louisiana granted a request for a preliminary injunction that halted enforcement of the rule in the rest of the country (specifically excluding the 10 states subject to the other injunction). The Eighth Circuit summarily upheld the injunction. On December 15, 2021, the Fifth Circuit limited the injunction to apply only to the 14 states that were a party to that lawsuit. On the same day, a court in Texas separately issued an injunction stopping implementation of the CMS Rule in the state of Texas.
As with the OSHA ETS, the CMS Rule is now pending before the Supreme Court. The Supreme Court has announced it will hold a special session to hear arguments on the CMS Rule (along with the OSHA ETS) on January 7, 2022.
The Biden administration immediately appealed both decisions: the Missouri case has been appealed to the Eighth Circuit, and the Louisiana case is being heard by the Fifth Circuit. For the moment, the CMS Rule is on hold in 25 states: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming. The CMS Rule is moving forward in the other 25 states and the District of Columbia.
In addition to the CMS Rule, many healthcare employers are now left in an additional state of legal limbo: on December 21, 2021, OSHA allowed its June 10, 2021 emergency temporary standard for healthcare employees (not to be confused with the more widely applicable ETS described above) to lapse without a replacement standard in place. While the OSHA ETS and CMS Rule touch on some similar ground, they remain held up in courts and do not cover all the practices required by the earlier OSHA standard specifically for healthcare workers. Healthcare employers who are (understandably) confused about their compliance obligations should consult with legal counsel.
Safer Federal Workforce Task Force Guidance for Federal Contractors
On September 24, 2021, the first Guidance for Federal Contractors and Subcontractors (Guidance) was issued by the Safer Federal Workforce Task Force (Task Force). Broadly, the Guidance required covered federal contractors to mandate employee vaccinations and require employees to adhere to certain masking guidelines. As with the CMS Rule, COVID testing for federal contractor employees in lieu of vaccination was not permitted. The Task Force later announced that the vaccination deadline for covered contractors would be pushed back from December 8, 2021 to January 18, 2022 to better align with the deadlines set out in the OSHA ETS.
On December 7, 2021, a federal court in Georgia issued a preliminary injunction halting enforcement of the federal contractor Guidance nationwide. Four other courts (in Kentucky, Louisiana, Missouri, and Florida) have issued injunctions that cover a more limited number of states; additional rulings in other courts may follow. The Biden administration has been appealing these rulings. While these rulings are on appeal, the Task Force Guidance remains on hold nationwide.
Venable is continuing to monitor the fast-changing developments in this area and will provide updates accordingly. For now, if you have any questions about the implications of these court decisions for your organization, please contact the authors of this alert (below) or any attorney in Venable's Labor and Employment, Healthcare, or Government Contracts groups.
Labor and Employment