Federal Vaccine Mandate Litigation Update

Below is an update on the various lawsuits surrounding the three vaccine mandates we have previously reported on.

OSHA ETS

Since our last update, the federal government has filed an emergency motion with the Sixth Circuit to immediately lift the stay issued by the Fifth Circuit or, alternatively, to modify the stay order to allow the ETS testing and masking requirements for unvaccinated employees to go into effect.

Based on the Sixth Circuit’s briefing schedule, it seems unlikely that it will rule on this emergency motion any earlier than December 10. Responses to this emergency motion are due by December 7, and replies are due by December 10. Though it seems unlikely at this point, it is possible that the Sixth Circuit lifts the stay before December 10, at which point the ETS requirements could become effective on the date of the order or on a later date set by the Court.

Any decision issued by the Sixth Circuit will almost certainly be appealed to the U.S. Supreme Court, which could address the issue through its “shadow docket” reserved for rulings issued on an expedited basis without full briefing.

Nonetheless, the ETS can remain in place only for six months, at which point it must be replaced by a permanent standard that undergoes the typical notice-and-comment period. When OSHA published the ETS, it simultaneously issued a Notice of Proposed Rulemaking, making clear that the ETS acts as its proposal for a permanent standard when the ETS expires in six months on May 4, 2022. OSHA has extended the public comment period for the ETS to January 19, 2022. If the ETS converts to a permanent rule in May, there is a 60-day period within which it can be challenged in court.

With the fate of the ETS unknown, employers are left to decide whether to “wait and see” or continue to prepare to implement the ETS. Employers would be wise to—at a minimum—continue collecting the vaccination status of employees while the litigation plays out, as this information is likely to be instructive for purposes of planning to comply with the ETS in the event that the stay is lifted, especially on the questions of testing, exemption requests and compliance with federal, state and local wage and hour laws.

For the 21 states that have their own state-based OSHA programs, the current scenario is even more befuddling. The ETS gave those states 30 days to implement their own vaccine and testing standards that would be at least as effective as OSHA’s mandate. If a state does not enact a mandate, OSHA can file an administrative action, but the process is generally slow.

CMS Mandate Applicable to Healthcare Workers

On November 29, U.S. District Judge Matthew Schelp of Missouri granted a preliminary injunction barring implementation of the vaccine mandate for healthcare workers in 10 states (MO, NE, AR, KS, AK, IA, WY, SD, ND and NH). The federal government has already appealed this ruling to the Eighth Circuit and filed an emergency motion to stay pending appeal. Appellees’ expedited response to the motion is due December 8. The federal government also filed a motion to stay in the district court, which was denied on December 1.

On November 30, U.S. District Judge Terry Doughty of Louisiana issued a preliminary injunction barring implementation of the CMS requirement nationwide. On December 2, this ruling was appealed to the Fifth Circuit, which has already issued a stay on OSHA’s ETS. Also on December 2, the DOJ filed a motion to stay pending appeal, which the court denied later that afternoon.

Federal Contractor Mandate

Also on November 30, U.S. District Judge Gregory Van Tatenhove of Kentucky granted a preliminary injunction barring implementation of the federal contractor mandate in three states (KY, OH and TN). The judge declined to issue a nationwide injunction, limiting the scope of the injunction to these three states. This injunction will likely be appealed to the Sixth Circuit, which is currently reviewing the federal government’s emergency motion regarding the Fifth Circuit’s stay of the OSHA ETS.

While covered federal contractors operating in states other than Kentucky, Ohio and Tennessee are not impacted by this stay and thus should continue implementing the vaccine mandate, we note that government agencies may include vaccine mandates as part of their contracting requirements. The federal government has strongly encouraged its agencies to incorporate a clause requiring compliance with this vaccine mandate into contracts that are not expressly covered by the mandate (such as contracts for supplies and manufactured products or those below the acquisition threshold). So federal contractors in any state could still be contractually required to comply with the vaccine mandate pursuant to individual federal contracts.

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As a final note, the three Circuit Courts that will hear the challenges discussed above—the Fifth, Sixth and Eighth Circuits—are generally viewed as conservative-leaning, with Republican-appointed judges in the majority.