Understanding the Status of Federal COVID-19 Vaccination Mandate Programs Amid Countless Legal Challenges
On November 18, 2021, the Occupational Safety and Health Administration (OSHA) announced it was suspending the implementation and enforcement of its vaccination Emergency Temporary Standard (ETS), which mandated COVID-19 vaccination or weekly testing of individuals working for employers with 100+ employees, while multiple legal challenges against the ETS are determined. This announcement followed an order from the U.S. Court of Appeals for the Fifth Circuit granting a stay of the ETS and directing that the agency “take no steps to implement or enforce the Mandate until further court order.” Cases challenging the ETS were pending across the country and have all been consolidated before the U.S. Court of Appeals for the Sixth Circuit, which has federal jurisdiction over Ohio, Kentucky, Michigan and Tennessee.
The stay of OSHA’s vaccination ETS did not impact the Centers for Medicare and Medicaid Services (CMS) rule, published the same day, that would require COVID-19 vaccination for healthcare workers. However, 10 states challenged the CMS rule in a U.S. District Court in Missouri. On November 29, 2021, that court issued a preliminary injunction halting implementation of the CMS rule in the 10 plaintiff-states. Ohio was not one of those states.
On Tuesday, November 30, 2021, just two days after the Missouri injunction, a U.S. District Court in Louisiana issued a nationwide preliminary injunction halting implementation of the CMS rule in a case that was brought by 14 other states, including Ohio. The Louisiana court’s order expressly covers all states in the nation except for the 10 states that received their own injunction in Missouri. The national preliminary injunction is to remain in place pending the district court’s final decision, or upon order of an appellate court or the U.S. Supreme Court.
Also on Tuesday, November 30, 2021, a U.S. District Court in Kentucky issued a preliminary injunction restraining the federal government from enforcing its rule requiring employees of federal contractors and subcontractors to be vaccinated against COVID-19. That court’s injunction applies only to covered contracts in the three states that filed the lawsuit: Ohio, Tennessee, and Kentucky.
At this time, CMS has not yet announced it will suspend implementation and enforcement of its rule like OSHA. However, that may still occur. In the meantime, employers should prepare for the possibility of the CMS rule taking effect and continue to monitor legal developments. The Safer Federal Workforce Task Force has not updated its guidance to reflect how the Kentucky court’s order impacts multistate employers that operate in the subject states. Of course, employers may continue to implement their own COVID-19 vaccine policies, subject to any restrictions or obligations set forth in an applicable collective bargaining agreement.
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