Three COVID-19 vaccination rules are currently the subject of multiple pending lawsuits across the country:
- OSHA's Emergency Temporary Standard (ETS)
- Executive Order 14,042, i.e. federal contractor and subcontractor vaccination rule, and
- Centers for Medicare and Medicaid Services (CMS) Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule
OSHA ETS
On November 6, 2021, the Fifth Circuit Court of Appeals temporarily enjoined enforcement of the OSHA ETS nationwide. On November 13, 2021, OSHA suspended implementation and enforcement of the ETS pending further court orders. OSHA's announcement included the following commentary: "While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation."
The other pending lawsuits across the country were then consolidated for review and decision by the Sixth Circuit Court of Appeals. The Fifth Circuit Court of Appeals also later rejected OSHA's motion to lift the stay pending a decision by the Sixth Circuit. Therefore, while the consolidated cases remain pending before the Sixth Circuit, the stay of the ETS previously issued by the Fifth Circuit remains in effect nationwide.
On November 23, 2021, OSHA filed an emergency motion with the Sixth Circuit Court of Appeals asking the Court to lift the stay entered by the Fifth Circuit. The Sixth Court issued a briefing schedule specifying December 10, 2021 as the deadline for all briefs to be filed concerning OSHA's pending emergency motion to lift the stay.
Issue to be decided - the Sixth Circuit will determine whether OSHA met its burden of establishing a two-part test - (1) that employees are exposed to grave danger from exposure to substances or agents to be determined to be toxic or physically harmful or from new hazards, and (2) that an emergency OSHA standard is necessary to protect employees from such danger.
Federal Contractor Vaccination Rule
On November 30, 2021, a U.S. District Court in Kentucky granted a preliminary injunction enjoining the federal government from enforcing the federal contractor and subcontractor vaccination rule. This stay, however, applies only in Kentucky, Ohio, and Tennessee. The Court concluded that the President exceeded his statutory authority by issuing Executive Order 14,042 and delegating authority to manage implementation of a public health measure to CMS. The Court also concluded that the Constitution does not confer such power on the President. However, the court declined to issue a national preliminary injunction, but instead issued a preliminary injunction only in Kentucky, Ohio, and Tennessee because "this court believes that redressability in the present case is properly limited to the parties before the court."
In addition, there are several other pending lawsuits filed by 16 other states challenging the federal contractor vaccination rule. This could lead to consolidation of these cases before a single court of appeals, but that has not yet happened.
At the moment, the federal contractor and subcontractor vaccination rule remains in effect in all states, except Ohio, Kentucky, and Tennessee.
CMS Health Care Staff Vaccination Rule
On November 29, 2021, a U.S. District Court in Mississippi perliminarily enjoined CMS from enforcing the Health Care Staff Vaccination Rule against any Medicare and Medicaid certified providers and suppliers in 10 states (i.e. Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming). The Court reasoned that Congress did not grant CMS authority to mandate vaccination, that CMS bypassed notice and comment requirements, and that the rule is "arbitrary and capricious."
On November 30, 2021, a U.S. District Court in Louisiana preliminarily enjoined enforcement of the CMS vaccination rule nationwide (but excluding the 10 states already covered by the Missouri court's preliminary injunction issued the day before). The Louisiana Court relied on much the same reasoning as invoked by the Fifth Circuit Court of Appeals when it enjoined enforcement of the OSHA ETS. These pending cases may also be consolidated before a single court of appeals for decision, but that has not yet happened.
At the moment, the CMS Health Care Staff Vaccination Rule is stayed nationwide.
Conclusion
There is a high degree of uncertainty concerning the ultimate fate of federal vaccination rules. No court has issued a premanent injunction, and appellate courts may ultimately disagree with the courts that issued injunctions thus far. Employers impacted by one or more of the federal vaccination rules may decide to prepare draft policies and procedures and start obtaining employee vaccination information to ensure adequate preparation in the event the injunctions are overturned and the federal vaccination rules are held to be valid and enforceable. And federal contractors and subcontractors located anywhere, other than Ohio, Kentucky and Tennessee, should comply with the federal contractor vaccination rule, unless and until the rule is further enjoined or invalidated.