COVID Vaccine Mandate Faces Legal Challenges

Over the past week, multiple legal decisions regarding the COVID-19 vaccination mandate occurred. Markedly, information involving the private employer mandate, health care staff mandate, and federal contractor mandate was either updated or clarified. The Equal Employment Opportunity Commission (EEOC) updated COVID-19 guidance in mid-November to emphasize its stance on the importance of vaccinations.

Overview of the Private Employer COVID-19 Vaccination Mandate

Particularly, the private employer mandate affects businesses with 100 or more employees. Specifically, those businesses would need to develop, implement, and enforce a mandatory COVID-19 vaccination policy. Employers, however, would not need to create this policy if they adopted a policy requiring employees to choose either to:

• receive a COVID-19 vaccination; or
• undergo regular COVID-19 testing and wear a face covering at work.

Markedly, after the Occupational Safety and Health Administration’s (OSHA’s) release of the mandate, many district courts received challenges against it. In fact, many entities filed challenges in every circuit court district (First to Eleventh) and the D.C. Circuit Courts. Earlier, the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) stated that the mandate is “both overinclusive … and underinclusive.” In other words, the court ruled that it:

1. doesn’t account for varying levels of COVID-19 exposure as a sweeping mandate, and
2. simultaneously, doesn’t attempt to shield employees with 99 or fewer coworkers from the same exposure.

In essence, the court ruled that OSHA’s vaccine mandate does not constitute a “delicate exercise” of an “extraordinary power” under Section 6 of the OSH Act. Due to that, the Fifth Circuit issued a temporary stay on the mandate. Although a “Multi-District Lottery” selected the U.S. Court of Appeals for the Sixth Circuit (Sixth Circuit) to hear the challenges against the rule, the Fifth Circuit stay remains.

Private Employer Vaccination Mandate and the Sixth Circuit

Presently, on December 3rd, 2021, the Sixth Circuit denied several petitions regarding the private employer mandate. In summary, many of those petitions involved transferring the case to other circuit courts. In view of the Sixth Circuit’s denials, the case will remain with that judicial body. Additionally, the Sixth Circuit denied a motion from OSHA for an expedited briefing schedule. In short, the briefing schedule would set an end date as to when the court could hear filed arguments. However, the Sixth Circuit stated that it would reserve judgment on setting a merits briefing schedule if needed. As of this post’s publication date, the Sixth Circuit plans to issue a decision on the vaccination mandate’s current “stay” by December 10th, 2021.

Current Status of the Health Care Worker COVID-19 Vaccination Mandate

Earlier, on November 4th, 2021, the Federal Register published an interim final rule created by the Centers for Medicare & Medicaid Services (CMS). Markedly, the published rule required staff working in Medicare- or Medicaid-certified providers to:

• have the shots necessary to be fully vaccinated against COVID-19 by January 4th, 2022, and
• to receive their first shot before December 6th, 2021.

However, on November 29 and November 30th, 2021, the U.S. District Court for the Eastern District of Missouri and U.S. District Court for the Western District of Louisiana issued preliminary injunctions against the rule’s implementation. Accordingly, on December 2nd, 2021, the CMS released a memorandum verifying that it will not enforce the provisions of the interim final rule while there are court-ordered injunctions in place.

Overview of the Federal Contractor COVID-19 Vaccination Mandate

Earlier, on September 9th, 2021, President Joseph R. Biden signed Executive Order (EO) 14042 into law. Explicitly, EO 14042 requires agencies to include a clause in new contracts, options, and extensions requiring COVID-19 vaccination compliance. Basically, it requires almost all employees that perform services under a covered contract to a federal entity to be vaccinated. However, on November 30th, 2021, a federal judge issued an injunction preventing the enforcement of the vaccine mandate in Kentucky, Ohio, and Tennessee. Indeed, the ruling stated that the EO overstepped the president’s authority. Similar litigation remains pending in:

• Arizona,
• Florida,
• Georgia,
• Missouri,
• Oklahoma, and
• Texas.

Alabama, Alaska, Arkansas, Idaho, Iowa, Kansas, Montana, Nebraska, New Hampshire, North Dakota, South Carolina, South Dakota, Utah, West Virginia, and Wyoming also filed similar lawsuits to stop the federal contractor mandate.