The Higher Ed Workplace Blog

Biden Administration’s Vaccine Mandates Face Legal Challenges in Court

Over the past several months, the Biden administration announced and implemented several vaccine and testing mandates for federal workers, federal contractors and private employers. States and business stakeholders quickly responded with lawsuits against the administration’s mandates, which continue to be challenged in courts around the country. To keep CUPA-HR members apprised of the legal challenges, we have detailed below the most recent litigation updates for the federal contractor vaccine mandate, the Occupational Safety and Health Administration (OSHA)’s Emergency Temporary Standard (ETS), and the Centers for Medicare and Medicaid Services’ (CMS) vaccine mandate for healthcare workers — all three of which are on hold pending the various lawsuits’ outcomes.

Federal Contractor Vaccine Mandate

On September 9, President Biden issued Executive Order 14042 (EO), “Ensuring Adequate COVID Safety Protocols for Federal Contractors,” as part of his “Path Out of the Pandemic” plan. The EO tasks the Safer Federal Workforce Task Force with implementing guidance that requires all federal contractors to mandate COVID-19 vaccinations for their employees. The current effective date is January 4, 2022, meaning all covered contractor employees must be fully vaccinated by January 18, 2022. A federal court recently enjoined the government from implementing the EO, however, so it remains unclear when, if ever, the mandate will go into effect.

Numerous lawsuits have been filed against the mandate arguing that the Biden administration does not have authority to require vaccinations, and two federal courts have already issued decisions. On November 30, the U.S. District Court for the Eastern District of Kentucky issued a preliminary injunction against the mandate, stopping enforcement in Kentucky, Ohio and Tennessee only. On December 7, a federal judge at the U.S. District Court for the Southern District of Georgia granted a motion for a nationwide preliminary injunction against the vaccination mandate for federal contractors, halting enforcement for federal contractors in all states. The Biden administration is expected to challenge this decision.

OSHA Emergency Temporary Standard

On November 5, OSHA issued its COVID-19 Vaccination and Testing ETS requiring employers with 100 or more employees to implement vaccination or testing policies for their workers. As it currently stands, the ETS requires covered employers and employees to be fully vaccinated by January 4, 2022. A federal court has enjoined OSHA from implementing the ETS, however, and it remains unclear whether the ETS will be in effect on January 4 or anytime thereafter.

Over three dozen lawsuits were filed against the rule, with at least one in all 12 circuit courts in the country. On November 6, the U.S. Court of Appeals for the 5th Circuit granted an emergency motion to stay the ETS, and on November 12, it extended the stay while it further reviewed the motion for a permanent injunction, ordering OSHA to stop implementation and enforcement of the ETS until further court order. Due to the high volume of cases at various circuit courts, a lottery was held on November 18 to determine which circuit court would hear the case to make a sweeping decision, which the 6th Circuit won, meaning the stay remains in place until the 6th Circuit makes a decision on the motion. It is likely the stay will remain in place until at least December 10; that said, the 6th Circuit can decide to lift the stay before that if it chooses to do so.

CMS Vaccine Mandate for Healthcare Workers

On November 5, the Centers for Medicare and Medicaid Services (CMS) issued a rule requiring healthcare workers in facilities that receive Medicare or Medicaid funds be vaccinated against COVID-19 by January 4, 2022. This rule also has been stayed by federal courts.

Four lawsuits were filed against CMS challenging the agency’s authority to issue the rule. On November 29, the District Court for the Eastern District of Missouri blocked implementation and enforcement in the 10 states that challenged the rule: Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire. On November 30, the District Court for the Western District of Louisiana issued a preliminary injunction blocking enforcement of the mandate nationwide, except in the 10 states impacted by the Missouri ruling. Decisions in the two other lawsuits are still pending.

CUPA-HR continues to monitor the ongoing litigation for all of the vaccine and testing mandates and will keep members apprised of any decisions that will impact institutions’ compliance efforts.

 

The CUPA-HR national office will be closed July 4 in observance of Independence Day.