All three federal COVID-19 vaccine mandates — for federal contractors, certain healthcare workers and workers at large private-sector companies — have been stayed nationwide.
Federal district courts throughout the United States have been asked to review the legality of the COVID-19 vaccine mandates issued by the Biden administration as a response to the ongoing pandemic. Below are the latest developments for each of the vaccine mandates affecting employers, as of December 8, 2021.
- OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The U.S. Court of Appeals for the Fifth Circuit issued a permanent nationwide injunction on the Department of Labor’s Occupational Safety and Health Administration’s (OSHA’s) COVID-19 Vaccination and Testing ETS, which mandates COVID-19 vaccinations or at least weekly testing for workers at companies in the U.S. with 100 or more employees by January 4, 2022. While lawsuits were filed in multiple circuit courts, the Sixth Circuit was selected to hear the case via a multi-circuit lottery. Until the Sixth Circuit rules on the issue, the Fifth Circuit’s permanent injunction will remain in place.1
- Federal contractor guidance. A federal court in Georgia stayed the federal contractor guidance nationwide on December 7, 2021. Previously, a federal court in the Eastern District of Kentucky granted a preliminary injunction enjoining the federal contractor COVID-19 vaccine mandate in Kentucky, Ohio and Tennessee.2
- CMS healthcare worker guidance. A federal court in Louisiana stayed the Biden administration from enforcing the Centers for Medicare & Medicaid Services (CMS) COVID-19 vaccine mandate for employees in healthcare facilities that receive Medicare or Medicaid nationwide (except for in the 10 states where the rule was already stayed: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming). Additional information on the CMS COVID-19 vaccine mandate can be found in the related CMS FAQs.
As a result of this ongoing litigation (which will likely involve appeals and eventually the U.S. Supreme Court), employers should consult with legal counsel to evaluate whether either to move forward with steps to comply with the federal COVID-19 vaccine mandates or to impose their own COVID-19 vaccine mandates and/or testing requirements even if the federal mandates are not ultimately upheld. Employers choosing to impose their own mandates must also be aware of any applicable state laws regarding vaccine mandates.
Footnotes
1 For more information on the OSHA ETS, see “Sixth Circuit to hear challenges to OSHA COVID-19 vaccine mandate,” Insider, November 2021.
2 For more information on the federal contractor guidance, see “COVID-19 vaccine guidance issued for federal contractors, subcontractors,” Insider, October 2021
