As we have described previously in recent months, several precarious federal mandates have been issued by the administration of President Biden as the country works its way toward recovery from the COVID-19 pandemic. These federal mandates have imposed significant burdens on private industry by sapping much-needed corporate resources, creating a sense of overreach and invasiveness, and alienating vaccine-resistant employees at the exact moment many employers are trying desperately to rev back up and to revitalize the economy.
The mandates have been implemented primarily by three executive-branch sources affecting three huge sectors of the economy: Executive Order 14042 affecting federal contractors, the Center for Medicare and Medicaid Services (CMS) affecting most health care employers, and the Occupational Safety and Health Administration (OSHA) affecting all other private employers with 100 or more employees.
Executive Order 14042 – Stayed
On Sept. 9, 2021, President Biden signed Executive Order 14042, which generally required federal contractors to police many of their employees (those working on federal contracts directly and employees supporting such work) by ensuring that they are vaccinated.
Executive Order 14042 has faced challenges in numerous courts. Most recently, on November 30, 2021, a federal court in Kentucky issued a temporary injunction against enforcement of the federal contractor mandate, concluding that President Biden likely overstepped his authority. As that court wrote, “Can the president use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors? In all likelihood, the answer to that question is no.”
Although the court wrote that “individuals in every state in the country are affected” by the constitutional overreach of Executive Order 14042, the court noted that the case before it had been filed by three states – Ohio, Kentucky, and Tennessee. Accordingly, the court determined that its injunction is applicable only to those three states.
Whether this stay will be expanded to other states is not yet known. Other cases have been filed around the country, and an eventual nationwide decision on the merits is likely. In the meantime, Ohio, Kentucky and Tennessee federal contractors are not required to comply while this local injunction remains in effect.
CMS Mandate – Stayed
On December 2, 2021, facing similar injunctions in other courts, CMS issued a memorandum suspending its own enforcement of the vaccine requirement for health care staff employed by Medicare- and Medicaid-certified providers and suppliers. According to the CMS memo, it has “suspended activities related to the implementation and enforcement of this rule” on a nationwide basis, “pending future developments in the litigation.”
While it was in effect, the CMS mandate affected hospitals, nursing facilities, home health care providers, dialysis facilities and other provider types. Before the court stays and administrative suspension, the first phase of the mandate – requiring all health care employees to obtain the first round of vaccinate doses – would have required compliance on December 6, 2021.
OSHA Mandate – Stayed
On Nov. 5, 2021, OSHA issued an Emergency Temporary Standard (ETS), requiring that all employers with 100 or more employees either mandate COVID-19 vaccination for all employees or allow employees to elect weekly COVID-19 testing.
However, the same day it was issued, the OSHA ETS mandate was enjoined nationwide by the Fifth Circuit Court of Appeals. Specifically, that court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” There were several immediate challenges to the ETS in other federal district and appellate courts as well. All litigation challenges to the OSHA mandate have now been consolidated for consideration by the Sixth Circuit Court of Appeals. While that case is pending, OSHA has suspended all enforcement activity for the ETS.
The Road Forward for Employers
Preliminary injunctions like those issued by the courts referenced above are not dispositive findings on the substance of any case; they are the result of initial determinations that parties seeking injunctive relief are reasonably likely to succeed on the merits. Accordingly, the parties will now begin briefing their arguments, and their respective courts will determine whether to permanently enjoin the federal vaccine mandates.
Of course, affected employers (and their attorneys) have been gearing up for compliance with these various federal COVID-19 vaccine mandates for months, including drafting policies, implementing programs for mandatory employee vaccination, and facing the real prospect of terminating non-complying employees.
With effectively all of the vaccine mandates now temporarily stayed, employers may choose to continue with implementation, on the assumption that the mandates will return in some form eventually. Employers generally can still require employee vaccination, independent of these federal mandates, subject to state law.
Alternatively, affected employers may choose to take a wait-and-see approach while conserving or salvaging their strained economic and human resources. The sporadic, hurry-up-and-wait environment created by this recurring government imposition on the private sector is not likely to be over anytime soon.
Employers should continue to consult with legal counsel and to monitor developments nationally and in the states where they operate to ensure that they fully understand their legal rights and obligations concerning the vaccine mandates.
The Labor and Employment lawyers at Coolidge Wall will post additional analysis and information updates. Should you have specific questions, please contact us.