Courts continue to move the goalposts on employers

President Biden announced a three-part federal vaccine mandate for large employers, certain healthcare providers and federal contractors back in September. Litigation immediately ensued in multiple venues, and courts issued various stays of enforcement as to each mandate…effectively barring any nationwide vaccine edicts.

On Friday, a divided three-judge panel of the U.S. Court of Appeals granted the government’s request to dissolve the Fifth Circuit’s hold on one of the regulations. Thus, the administration’s emergency Covid-19 shot-or-test rule for large employers can go into effect now that the order that had blocked the measure has been lifted.

State-of-Play

Vax-or-Test Mandate for Large Employers

Latest development – The Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) nationwide stay was dissolved by the Sixth Circuit on December 17, 2021.

What does this mean? Employers must start taking good faith steps to come into compliance with the standard immediately.

• January 10, 2022 is the new deadline to have a written policy, require masking for unvaccinated employees and provide PTO for employees to get vaccinated.

• February 9, 2022 is the new deadline for requiring unvaccinated employees to begin weekly COVID testing

What’s next? The U.S. Supreme Court will hear arguments in this case during a special session on January 7, 2022.

Vax Mandate for Healthcare Providers

Latest development – The “nationwide” injunction was lifted by the Fifth Circuit as it relates to specific states.

What does this mean? A flurry of litigation has led to an even split between states in which the guidance issued by the Centers for Medicare and Medicaid Services (CMS) may be implemented and states in which such implementation has been prevented (see lists below). The partial dissolution means that CMS could begin enforcement of its rule in those 25 states. However, the manner in which CMS will move forward with implementation has yet to be announced.  

What’s next? The U.S. Supreme Court will hear arguments in this case during a special session on January 7, 2022.

Vax Mandate for Federal Contractors

Latest development – The rule remains in limbo. A federal judge in Missouri added another legal roadblock to this case on December 20, 2021. The latest injunction – issued by U.S. Magistrate David Noce – applies in Alaska, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire North Dakota, South Dakota and Wyoming. It comes on top of a nationwide injunction pursuant to a December 7th ruling issued by the U.S. District Court for the Southern District of Georgia.   

What does this mean? Government contractors are not required to comply with the vaccine mandate – at least for now.

What’s next? It is expected that the government will petition the U.S. Court of Appeals for review of the order(s).

TASC Government Affairs will continue to monitor and provide updates as they become available.

*Stay Remains / CMS Cannot Enforce: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wyoming

**Stay Lifted / CMS May Enforce: 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, Wisconsin