President Joe Biden’s vaccine mandates are being attacked on multiple fronts and have suffered significant setbacks in the past two weeks.  Courts in multiple jurisdictions have issued preliminary injunctions halting vaccine mandates that the Biden Administration has imposed on private employers, health care workers, and government contractors.  While the mandates themselves may vary and apply to different groups of individuals, the universal concern raised by courts examining these mandates is whether they exceed the authority of the President and those federal agencies tasked with issuing, implementing, and enforcing them.  The issue will almost certainly make its way to the U.S. Supreme Court.

OSHA’s ETS for Employers with 100+ Employees

On November 12, 2021, a three-judge panel sitting on the Fifth Circuit Court of Appeals upheld a nationwide stay of the Emergency Temporary Standard (ETS) on COVID-19 Vaccination and Testing issued by OSHA.  If implemented, the ETS would have required all employers with 100 or more employees to adopt a policy requiring their employees either to get vaccinated against COVID-19 or submit to masking and weekly testing for the virus.  Failure to comply would lead to crippling financial penalties starting at $1,400 a week per violation and/or the immediate termination of non-compliant employees.  For companies with 100 non-compliant employees, the impact would be a staggering $1,400,000 in fines a week.  Many companies would not survive the adverse impact of these sanctions.

The Fifth Circuit’s stay operates to block the ETS nationwide.  On November 16, 2021, the challenges to OSHA’s ETS in various circuits were consolidated before the Sixth Circuit pursuant to a statutorily mandated lottery drawing.  To date, the Sixth Circuit has left he Fifth Circuit stay in place and has implemented a briefing schedule which concludes on December 10, 2021 for the administration’s emergency motion to lift the stay. When the Sixth Circuit ultimately rules, and appeal to the to the U.S. Supreme Court is sure to follow.

CMS Mandate for Health Care Workers

On November 30, 2021, a federal district judge in Louisiana granted a nationwide preliminary injunction preventing implementation of a mandate by the Centers for Medicare and Medicaid Services (CMS), finding that CMS likely lack the necessary authority to implement the mandate.  The CMS mandate would have required all employees, contractors, and volunteers at health care facilities participating in Medicare or Medicaid to have at least 1 dose of a COVID-19 vaccine by December 6, 2021.   Louisiana was joined by 13 other states in challenging the CMS mandate, including Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia.

A similar injunction was issued on November 29, 2021 by a federal district court in Missouri prohibiting implementation of this mandate in Alaska, Arkansas, Iowa, Kansas, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.

Vaccine Requirement for Government Contractors

Also, on November 30, 2021, a federal district judge in Kentucky granted a preliminary injunction halting a mandate issued by President Biden which would have required all federal contractors to be fully vaccinated against COVID-19 by January 4, 2022.  Like the reasoning underlying the Louisiana decision to block implementation of the CMS mandate, the Kentucky court found that the mandate likely exceeded President Biden’s authority under the Federal Property and Administrative Services Act, which gives the President broad authority to manage federal procurements.

Unlike the preliminary injunctions issued against the OSHA ETS and CMS mandates, this injunction applies only in Kentucky, Ohio, and Tennessee.  However, it is only one of several challenges being brought across the country against this federal contractor mandate.  On October 28, 2021, Alabama, Florida, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia also filed suit in Georgia challenging the federal contractor vaccination mandate.  Alaska, Arkansas, Iowa Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming likewise filed suit in federal court in Missouri.

These cases will almost certainly make their way to the Supreme Court.  In the meantime, employers with 100 or more employees, federal contractors and sub-contractors, and health care works will watch and wait.

Authored by: Charles G. Meyer, III and Rachael L. Loughlin