As we have previously reported, implementation and enforcement of the Occupational Safety and Health Administration (OSHA) vaccination Emergency Temporary Standard (ETS), which mandated COVID-19 vaccination or weekly testing of individuals working for employers with 100+ employees, has been voluntary suspended by OSHA while multiple legal challenges against the ETS are determined. The cases have all been consolidated before the U.S. Sixth Circuit Court of Appeals, which has federal jurisdiction over Ohio, Kentucky, Michigan and Tennessee.

The OSHA stay did not impact the Centers for Medicare and Medicaid Services (CMS) rule requiring COVID-19 vaccination for health care workers. However, 10 states challenged the CMS rule in a U.S. District Court in Missouri. On November 29, 2021, the court issued a preliminary injunction halting implementation of the CMS rule in the 10 states that filed the lawsuit. Ohio was not one of those states.

Yesterday, just two days after the Missouri court order, a U.S. District Court in Louisiana also issued a preliminary injunction halting implementation of the CMS rule in a case that was brought by 14 other states, including Ohio. Unlike the Missouri order, however, the Louisiana order is a national injunction, which expressly covers all other states except for the 10 states that received their own injunction in Missouri. The national preliminary injunction is to remain in place pending the district court's final decision, or upon order of an appellate court or the U.S. Supreme Court.

At this time, CMS has not yet voluntarily suspended its rule like OSHA. However, that may still occur. In the meantime, employers should prepare in the event the CMS rule eventually goes into effect and continue to monitor legal developments. Of course, health care employers may continue to implement their own COVID-19 vaccine policies, subject to any restrictions or obligations set forth in an applicable collective bargaining agreement.

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