Federal vaccine mandate obligations continue to be challenged successfully in the courts. Here is a quick refresher on the federal measures taken recently to require employers to mandate COVID-19 vaccination.
A season of federal vaccine mandates
On Sept. 9, 2021, President Biden signed Executive Order 14042, which required many federal contractors to mandate vaccination of employees at facilities which provide support for their federal work. On Nov. 5, 2021, the Occupational Safety and Health Administration (OSHA) issued its long anticipated Emergency Temporary Standard (ETS), requiring all employers with 100 or more employees either mandate COVID-19 vaccination for all employees or allow employees to elect regular COVID-19 testing. On the same day, the Center for Medicare and Medicaid Services (CMS) issued rules requiring employers who participate in Medicare or Medicaid programs to mandate COVID-19 vaccination for employees.
All three of these federal mandates require full COVID-19 vaccination of employees by various dates in January 2022. Almost immediately, Attorneys General in various states and certain business groups filed federal lawsuits challenging the mandates on federal law and constitutional grounds. The litigation efforts to take the vaccine mandates off track have been successful in a number of cases.
Details of federal lawsuits
The OSHA ETS was subject to a federal appeals court injunction issued by the Fifth Circuit Court of Appeals. Subsequently, the various challenges to the OSHA ETS in other federal appeals courts have been consolidated for determination by the Sixth Circuit Court of Appeals. That case is pending. In the meantime, OSHA has suspended all steps for enforcing the ETS.
On Nov. 30, 2021, a federal judge in Kentucky issued a preliminary injunction barring enforcement of the federal contractor mandate under Executive Order 14042 in the three states which had filed challenges in the Kentucky court: Ohio, Kentucky and Tennessee. Also on Nov. 30, 2021, a federal judge in Louisiana issued a nationwide injunction against enforcement of the CMS COVID-19 mandate.
All of these federal court decisions are preliminary in nature. They halt enforcement of the measures until full evidence can be heard and permanent decisions reached. It remains to be seen whether some or all of these federal court COVID-19 vaccine measures will ultimately survive the legal challenges.
What do employers do now?
Employers had been scrambling to set up steps for compliance with these various federal COVID-19 vaccine mandates. Many had begun implementing programs for requiring COVID-19 vaccination. Now, these employers must consider their options. Do they hit pause on any further steps to mandate vaccination, while waiting to see how these various challenges will ultimately be decided in the courts? Employers choosing to continue with vaccine mandates will have to evaluate the potential impact on employee relations and retention and, importantly, will have to be sure to check laws in the states in which they operate. Increasingly, state legislatures are passing laws prohibiting various kinds of COVID-19 vaccination mandates. That sets up the potential for conflict between federal and state legislation. The result is a patchwork of obligations that varies around the country and is further complicated by the increasing number of states weighing in with their own COVID-19 vaccination laws.
Unfortunately, much remains uncertain in this area. Employers are well-advised to stay tuned for further developments and to consult with legal counsel about which federal and state COVID-19 vaccine mandates apply where they have operations.