Currently all federal COVID-19 vaccine mandates introduced by the White House are stayed pending the outcome of litigation in the federal courts. As of December 7, 2021, no private U.S. employers are currently required to implement any federally prescribed COVID-19 vaccination requirement.
In early September, the White House announced a six-pronged national strategy to combat the effects of COVID-19. This “Path out of the Pandemic” included a strategy to increase vaccinations of Americans through three vaccine mandates that applied to private employers:
- Executive Order 14042 requiring COVID-19 vaccination of employees of federal contractors working on or in connection with federal government contracts;
- The Centers for Medicare and Medicaid Services’ emergency regulation requiring COVID-19 vaccination of health care workers at Medicare and Medicaid participating hospitals and health care settings (CMS Mandate), and
- The Occupational Health and Safety Administration’s Emergency Temporary Standard (OSHA ETS) requiring employers with 100 or more employees to be vaccinated or tested weekly.
All three vaccine mandates are currently preliminarily enjoined on a nationwide basis.
On December 7, 2021, the United States District Court for the Southern District of Georgia issued an order enjoining the federal government from enforcing the vaccine mandate for federal contractors and subcontractors included in Executive Order 14042 and the corresponding Safer Federal Workforce Task Force Guidance.
This decision follows the November 29, 2021 and November 30, 2021 orders from federal district courts in Missouri and Louisiana, respectively, that together preliminary enjoined the CMS Mandate that required staff of certain Medicare and Medicaid providers to be fully vaccinated by January 4, 2022, on a nationwide basis.
The U.S. Court of Appeals for the 5th Circuit stayed enforcement of the OSHA ETS on a nationwide basis on November 12, 2021.
What happens next?
With regard to the stay of E.O. 14042 and the CMS Mandate, the federal government has already appealed the preliminary injunction orders to the respective federal appellate courts.
As for the OSHA ETS, all cases challenging the ETS have been consolidated and transferred to the U.S. Court of Appeals for the 6th Circuit as a result of a judicial lottery. The 6th Circuit will determine whether to uphold the OSHA ETS.
In the meantime, enforcement of all three vaccine mandates will be temporarily stayed until a court issues an order stating otherwise. Both OSHA and the Safer Federal Workforce Task Force have published announcements on each of their websites stating that they will not take steps to implement and enforce the requirements of the ETS and the Safer Federal Workforce Task Force Guidance, respectively, while they are stayed by courts.
How should covered entities proceed?
As the stays could be lifted at any time, covered employers wishing to avoid being caught unprepared should analyze the steps they will need to undertake to comply with any applicable mandate(s). In addition, employers wishing to implement a vaccine mandate absent the federal requirement should first contact their counsel to determine if there is any state or local law that either prohibits or limits an employer initiated vaccine mandate.
Lerch, Early & Brewer is closely monitoring these cases and will provide updates when new developments occur.