Federal COVID-19 Vaccine Mandates: Litigation Update

The status of the various mandates is rapidly evolving as challenges and appeals continue to move through the courts.  Below, is an update of the litigation to date.

OSHA Emergency Temporary Standard (“ETS”): As previously reported, the Sixth Circuit heard the consolidated multidistrict litigation challenging the ETS.  On December 17, 2021, the Court dissolved the stay of the OSHA ETS that was previously entered by the Fifth Circuit.  Although emergency appeals have been filed at the Supreme Court, OSHA ETS will take effect on January 4, 2022, unless the Supreme Court takes action.  However, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.  Accordingly, we recommend that employers prepare to comply.  For more information on the timeline of enforcement, please see the following: COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov).

Executive Order: On December 7, 2021, the U.S. District Court for the Southern District of Georgia issued a stay to bar enforcement of President Biden’s Executive Order mandating vaccines for covered employees of federal government contractors.  The order blocks the mandate for all states across the country – extending the previous ruling of a federal court in Kentucky, which only blocked the mandate in Kentucky, Ohio, and Tennessee.  The Justice Department has filed notices of appeal.  We recommend that federal contractor employers prepare to comply with this mandate in case the status changes on appeal.

CMS Mandate: A nationwide preliminary injunction was recently lifted by  the U.S. Court of Appeals for the Fifth Circuit in some states but remains in effect in others.  Now, the CMS rule preliminarily cannot be enforced in 25 states, including: 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 federal government has asked the U.S. Supreme Court to lift the preliminary injunctions applicable to these states.  Despite the current injunctions, we recommend that employers in these states continue to prepare to comply.

The CMS rule will move forward in the following 25 states and the District of Columbia: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin.  Accordingly, employers in these jurisdictions should resume compliance with the mandate.

Takeaway: We will continue to monitor the litigation as the appeals continue.  In the meantime, we recommend all covered employers continue to prepare for compliance.

Melissa Calhoon Jones is chair of the labor and employment group.  For more information about this regulation and other employment concerns, please contact her.

This information has been prepared by Tydings for informational purposes only and does not constitute legal advice.