Employment Law Report

Employers Beware – The Sixth Circuit Unexpectedly Lifts the Stay on Biden’s Vaccine Mandate for Employers With Over 100 Employees and Other Updates on Vaccine Mandate Court Challenges

By: Mitzi D. Wyrick

Challenges are pending to several portions of President Biden’s COVID-19 Action Plan, including the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) for employers with 100 or more employees, the Centers for Medicare & Medicaid Services (CMS) vaccine mandate for certain healthcare employers, the federal contractor vaccine mandate, and the Health and Human Services (HHS) vaccine mandate for Head Start employers. Employers need to stay aware of the challenges and implementation schedules for the vaccine mandates that may affect them.

OSHA ETS.  Although the OSHA ETS is currently in effect, OSHA has extended the deadlines for enforcement of the ETS. 

On Friday, December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay of enforcement of the OSHA ETS that had been implemented by the Fifth Circuit Court of Appeals. In a 2-1 decision, the Sixth Circuit found that the OSH Act confers authority on OSHA to impose standards and regulations on employers to protect workplace health and safety, including the transmission of viruses in the workplace. In making its decision, the Sixth Circuit concluded that COVID-19 still poses an emergency, given the recent increase in COVID-19 infections. The Court was not prepared to second-guess OSHA’s finding that COVID-19 poses a particular and pervasive danger for unvaccinated workers in the workplace and that that there is a heightened risk of exposure at work. 

When the stay was lifted, OSHA immediately issued the following statement: “To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” Consequently, employers need to be developing their policy and testing protocols to meet the January 10th deadline and to begin testing or vaccination programs by February 9, 2022.

But the challenge is not over. On Friday night, shortly after the Sixth Circuit issued its Order, several petitioners filed an Emergency Application for Immediate Stay of Agency Action Pending Disposition of Petition for Review with the United States Supreme Court. The petition has not yet been ruled upon. 

CMS Healthcare Employer Vaccine Mandate. The CMS vaccine mandate for certain healthcare employers is currently enjoined in several states. Even though the injunction is not currently effective in all states, CMS has indicated that they will treat it as a nationwide injunction.

Several states have sought to enjoin CMS’s vaccine mandate with varying degrees of success.

  • On November 29, 2021, a Missouri federal district court granted a preliminary injunction preventing CMS from enforcing the mandate in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. On December 13, 2021, the Eighth Circuit denied CMS’s motion to lift the preliminary injunction in those states.
  • On November 30, 2021, a Louisiana federal district court granted a preliminary injunction preventing CMS from enforcing the new rules nationwide. On December 15, 2021, the court narrowed the injunction to include only the states of Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia. 
  • On December 15, 2021, Texas issued an injunction preventing the vaccine mandate from going into effect in Texas. 
  • But on November 20, 2021 , a federal district court in Florida denied the state’s motion for a preliminary injunction. On December 6, 2021, the Eleventh Circuit denied Florida’s motion for a preliminary injunction pending appeal. 

The vaccination requirement is currently in effect in the following 25 states: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin.

The Biden Administration has filed an emergency request with the United States Supreme Court to lift the injunctions preventing CMS from implementing a vaccine mandate for workers at health care facilities that receive federal funding. The Supreme Court has ordered challengers to file responses by December 30th.

Given the state of confusion and inconsistent positions taken by the courts, CMS “has suspended activities related to the implementation and enforcement of [the mandate] pending future developments in the litigation.”

Federal Contractor Mandate.  The federal contractor mandate in Executive Order 14042 is currently enjoined. 

The federal contractor mandate has been enjoined by a federal district court in the Eastern District of Kentucky (applicable to Kentucky, Ohio, and Tennessee). The court denied a motion to stay enforcement of its order.  An appeal is pending in the Sixth Circuit Court of Appeals. 

In addition, the federal contractor mandate was enjoined by a federal district court in Georgia. On December 17, 2021, the Eleventh Circuit denied the Biden administration’s request to dissolve the nationwide injunction against the vaccine mandate applicable to federal contractors. The Eleventh Circuit set an expedited schedule for briefing on the merits of the appeal extending into late January.

HHS Head Start Vaccine Mandate.  Texas, which so far is the only state to do so, has challenged the vaccine mandate recently implemented by HHS for Head Start and Early Head Start employers. It appears that Texas is seeking to enjoin enforcement of the mandate on a nationwide basis.  Briefing on the motion for temporary restraining order or injunction is set to be complete on December 28th with argument being held on December 30th

We will keep you advised as to future developments. In the meantime, please reach out to your Wyatt employment attorney for assistance.    

Mitzi D. Wyrick
Mitzi Wyrick is a member of the Firm’s Litigation & Dispute Resolution Service Team. She concentrates her practice in the areas of class actions, labor and employment law matters and complex commercial litigation. Read More