In the beginning of last week, the courts were busy hearing challenges to various COVID-19 vaccine mandates. Here’s what we know: preliminary injunctions have been granted to halt enforcement of the Centers for Medicare and Medicaid Services’ (CMS) interim final rule (IFR) mandating vaccination for healthcare workers and President Biden’s Executive Order on mandatory vaccinations for federal contractors. As a result, CMS announced last Thursday it is suspending its enforcement of the IFR. As of now, there have been no reports if the Biden Administration will do the same for the federal contractor mandate.
Both the IFR and federal contractor mandate call for covered-employers to require their employees, who have not been granted an exemption, to be fully vaccinated by January 4, 2022. Additionally, both mandates do not allow for a weekly testing option. It is unclear if the compliance dates will be extended or disregarded if these mandates are deemed unenforceable.
Specific details about the injunctions are discussed below.
CMS’s Interim Final Rule
On November 29, 2021, Federal Judge Matthew Schelp of the U.S. District Court for the Eastern District of Missouri issued a preliminary injunction that temporarily halts the enforcement of the IFR. The opinion can be found here. In this ten-state lawsuit, the states argued that the issuance of the IFR failed to follow proper procedures, exceeded CMS’ authority and infringed on states' rights. In his opinion, Judge Schelp wrote “[w]hile the Court agrees Congress has authorized the Secretary of Health and Human Services (the “Secretary”) general authority to enact regulations for the “administration” of Medicare and Medicaid and the “health and safety” of recipients, the nature and breadth of the CMS mandate requires clear authorization from Congress—and Congressed has provided none.” The injunction applies to Missouri, Alaska, Arkansas, Iowa, Kansas, New Hampshire, Nebraska, North Dakota, South Dakota, and Wyoming.
On November 30, 2021, Federal Judge Terry A. Doughty, of the U.S. District Court for the Western District of Louisiana also issued a preliminary injunction that suspends the enforcement of the IFR. The opinion can be found here. Judge Doughty found that the states have an interest in preventing the “alleged loss of jobs, loss of businesses, loss of tax revenue, and other damages allegedly resulting from employees being fired for refusing the vaccine and/or providers being terminated by CMS from the Medicare/Medicaid provider agreement.” Most importantly, Judge Doughty held that this injunction will be applied nationwide, except for the states that were a party to the Missouri case discussed above.
Enforcement of IFR is Suspended
On December 2, 2021, CMS announced that given the ongoing litigation, it is suspending enforcement of the IFR for as long as the injunctions remain in effect. The announcement can be found here. CMS asserts it “remains confident in its authority to protect the health and safety of patients in facilities certified by the Medicare and Medicaid programs.” The announcement does not mention whether the compliance deadline will be extended but it states health care facilties may voluntarily choose to comply with the IFR.
Federal Contractor Mandate
On November 30, 2021, Federal U.S. District Judge Gregory F. Van Tatenhove of the Eastern District of Kentucky granted a preliminary injunction that halts the enforcement of the COVID-19 vaccine mandate for federal contractors and subcontractors. The opinion can be found here. Judge Tatenhove wrote although the government "at some level and in some circumstances" can require people to be vaccinated, he found that the President is likely not authorized to “use congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors.” Along with Kentucky, this injunction will also apply to Ohio and Tennessee as they were parties to the case.
Update on Federal Worker Mandate
It is important to note, November 22, 2021 was the deadline for federal workers to comply with their COVID-19 vaccination; The White House Office of Management and Budget (OMB), however, on November 29, 2021 stated that federal employees who remain unvaccinated will be given more time, provided with education and counseling and enforcement will be delayed until January.
OSHA’s ETS Update
OSHA’s ETS is also currently enjoined by the Fith Circuit and a consolidated appeal is pending before the Sixth Circuit. For employers interested in the latest information on OSHA’s ETS, click here.
Challenges to State Vaccine Mandates
On November 29, 2021, Supreme Court Justice Stephen Breyer refused to grant an emergency injunction for workers from a Boston-based hospital challenging the hospital’s mandatory vaccine policy in the First Circuit Court of Appeals. The workers were denied exemptions from the vaccine policy and were subsequently placed on unpaid leave or were discharged.
On October 19, 2021, the U.S. Court of Appeals for the First Circuit affirmed the denial of a motion for preliminary injunction that sought to prevent enforcement of Maine’s COVID-19 vaccination mandate. The First Circuit Court’s opinion can be found here. The mandate requires all healthcare workers to be vaccinated and does not allow for religious exemptions. However, since the issuance of the CMS’s IFR, which allows for religious exemptions, the Maine Department of Health and Human Services (Maine HHS) announced that it is reviewing the federal rule and will provide guidance on its effect on Maine’s mandate.
On November 28, 2021, the Second Circuit Court of Appeals issued an opinion that fifteen public school teachers and administrators from New York City must have their requests for religious accommodations from the City’s COVID-19 vaccine mandate for public workers reconsidered because the mandate may violate their First Amendment rights. The opinion can be found here.
How Should Employers Proceed?
Despite the on-going litigation concerning these COVID-19 vaccine mandates, employers should continue preparations for compliance with these mandates should they survive judicial review. Employers should work on developing compliant policies, survey their workforces to determine vaccination status and encourage unvaccinated employees to become vaccinated. Employers should tackle some of the bigger questions like whether they will mandate vaccination subject to exemptions or to permit weekly testing (where permitted under OSHA’s ETS). Simply put, Employers need to remain flexible and do what they can in light of the uncertainty and should continue to watch legal developments.
The author thanks law clerk Naomi Gulama for her help preparing this alert.