The Vaccine Mandate Madness Continues

By Skoler, Abbott & Presser, P.C.

December 3, 2021

We recently blogged about the OSHA “shot or test” mandate being put on hold by a U.S. Appeals Court.  This week, courts blocked two different vaccine mandates issued by the Biden administration.

CMS Vaccine Mandate Put on Hold Across the Country

On November 30, a U.S. District Court judge serving in the Western District of Louisiana issued a ruling that temporarily halts enforcement of the November 4th emergency regulation issued by the Centers for Medicare & Medicaid Services (CMS) requiring COVID-19 vaccination for all eligible employees of certified Medicare and Medicaid facilities. The decision puts the mandate on hold nationwide. The judge wrote:

“There is no question that mandating a vaccine to 10.3 million healthcare workers is something that should be done by Congress, not a government agency.”

Just a day earlier, a judge in Missouri issued a similar injunction pausing the mandate in Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire.  The judge in that case stated that  the CMS vaccine mandate is most likely an overstep of the agency’s authority, specifically, that “[t]he nature and breadth of the CMS mandate requires clear authorization from Congress—and Congress has provided none.”

The government has already appealed the Missouri District Court’s decision to the U.S. Court of Appeals for the Eighth Circuit, and it can be expected that the it will also appeal the Louisiana District Court’s decision to the U.S. Court of Appeals for the Fifth Circuit.

The CMS vaccine mandate was set to take effect Monday, December 6, with a deadline for full vaccination of millions of employees by January 4, 2022. Because the status of the CMS mandate is now in flux, employers must pay attention to these legal challenges and remain prepared should the mandate go into effect. With one appeal pending and another looming, however, it is likely that the current deadlines will not remain in place.

Federal Contractor and Subcontractor Vaccine Mandate Temporarily Enjoined in Three States

On November 30, a federal district court halted Executive Order 14042 for all covered contracts in Kentucky, Ohio and Tennessee. This means federal contractors and subcontractors subject to the Executive Order requiring COVID-19 vaccination are relieved, at least temporarily, from implementing the requirements for employees in those three states. One of those requirements is the upcoming deadline of January 18, 2022, for covered contractor employees to be fully vaccinated. On closer look, it is unclear how the limited application of the court’s decision will work in practice. A federal government contract may have a covered employee, the employer, the government contracting office, and the contract’s place of performance all in different states. Not to mention the fact that the contractor mandate covers remote workers. Stay tuned as this legal challenge to Executive Order 14042 has just begun.

While there are no large-scale efforts to challenge the mandate for federal contractors, its implementation and enforcement in other areas may now be subject to legal challenges, as we have seen with OSHA’s ETS and the CMS regulation. It is likely that the January 18, 2022 deadline will stand for most covered employers. They, too, should continue to be prepared for deadlines and monitor the contractor mandate’s status across the federal courts  

We continue to closely monitor all developments and will bring you important updates and information in a timely manner. If you have questions regarding any of the vaccination mandates or vaccine policies in general, please feel free to contact our office.