Federal Covid-19 Vaccine Mandates: How it Started, How it's Going

By Chelsea Betcher - McMahon Berger P.C.

December 3, 2021

On September 9, President Biden announced his “Path Out of the Pandemic” which prominently featured a plan to “vaccinate the unvaccinated.” The mechanism to achieve this goal was to use federal powers, including executive orders and federal administrative agencies, to require vaccination of the unvaccinated.  In the following months, President Biden issued Executive Orders requiring vaccination of federal employees and requiring federal contracts to include an employee vaccination mandate as a condition of those contracts. Thereafter, the Occupational Health and Safety Administration (OSHA) issued an “Emergency Temporary Standard” (ETS) requiring employers with 100 or more employees to develop a COVID-19 vaccination policy and mandate either vaccination or weekly testing of most employees. Finally, the Centers for Medicare and Medicaid Services (CMS) issued new regulations (the Interim Final Rule) requiring Medicare and Medicaid providers to vaccinate their staff.

Almost as soon as they were issued, the Executive Orders and administrative rules were challenged in a flurry of lawsuits, including many filed by numerous States Attorneys General.  Litigation surrounding the various vaccine mandates continues to rapidly evolve.  As summarized below, three separate federal courts issued new rulings this week blocking the implementation of the vaccine mandates of federal contractors and health care workers. This follows prior injunctions against enforcement of the COVID-19 mandates issued throughout the month of November.

OSHA “Large Employer” ETS

Status: Enjoined nationwide; OSHA has halted enforcement

As noted in our prior alert, the November 5th, 2021 ETS requires employers with 100 or more employees to mandate COVID-19 vaccinations.  The ETS was enjoined by the United States Court of Appeals for the Fifth Circuit on November 12th, and a variety of challenges to the ETS have been consolidated and are pending before the United States Court of Appeals for the Sixth Circuit. In response to the Fifth Circuit’s ruling, OSHA released a statement on November 17th that the agency has suspended implementation and enforcement of the ETS pending future developments in the litigation. A three-judge panel from the Sixth Circuit is next in line to hear the issues regarding the ETS, although there is a request to have all judges of the Court hear the case simultaneously. Regardless of how the Sixth Circuit rules, it is almost certain that the case will be appealed to the United States Supreme Court.

CMS’s Interim Final Rule

Status: Enjoined nationwide; CMS has halted enforcement

The CMS COVID-19 Health Care Staff Vaccination Interim Final Rule has been enjoined as well. The CMS mandate required all employees at health care facilities that participate in the Medicare and Medicaid programs to be fully vaccinated by January 4, 2022. On November 29, 2021, the United States District Court for the Eastern District of Missouri issued a preliminary injunction on this mandate for the States of Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire. The following day, CMS’s mandate was enjoined in all other states by a ruling that came out of the United States District Court for the Western District of Louisiana. On December 2nd, CMS issued a statement announcing that it would not enforce its Interim Final Rule until the legal challenges to it have been resolved.

Federal Contractor Vaccine Mandate

Status: Enjoined in Kentucky, Ohio & Tennessee; other legal challenges pending

Additionally, there have been ongoing disputes concerning the Federal Contractor Vaccine Order. A federal judge in Kentucky issued a ruling on November 30th halting the vaccine mandate for federal contractors in Kentucky, Ohio, and Tennessee, holding that President Biden likely does not have the power to impose vaccines on employees of federal contractors and subcontractors. It is anticipated that the government will appeal this ruling to the Sixth Circuit Court of Appeals. Keep in mind that this ruling only applies to those three states, although it is possible that similar rulings from other courts may soon follow.

Federal Employee Vaccine Mandate

Status: Still in effect, but termination for non-compliance delayed until January 2022

In addition to various court rulings, the White House Office of Management and Budget wrote a letter to federal agencies discouraging firing unvaccinated workers before January 1, 2022. The letter encourages managers to educate, counsel, and at most, write a letter of reprimand for federal workers who resist President Biden’s vaccine mandate. The letter made clear that educating and counseling unvaccinated federal employees, instead of imposing severe consequences (such as termination), will help achieve their goal of getting the federal workforce vaccinated.

What’s Next?

Additional legal challenges to the foregoing Executive Orders and administrative rules remain pending, and the current rulings may change at any time.  It is likely that the viability of many of these vaccine mandates will not be resolved until they are addressed by the United States Supreme Court. As the vaccine mandate saga continues to unfold each week, employers are encouraged to pay close attention to the latest court rulings and guidelines to ensure they are operating in an appropriate manner.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.