Vaccine Mandate Legal Updates

Poyner Spruill LLP

Poyner Spruill LLP

The enforcement dates and legal landscape surrounding three mandatory vaccination rules are rapidly shifting from day-to-day. We will update this page with the latest legal news regarding each of the vaccine mandates and any change in enforcement rules.

OSHA ETS on Vaccination and Testing

The ETS was released on November 4, 2021, and became effective on November 5, 2021. Many states, private employers, labor unions, and other individuals immediately filed suit. On November 12, 2021, the Fifth Circuit stayed enforcement and implementation of the ETS pending judicial review.

Here is the most updated information regarding the OSHA ETS[1]:

  • On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the stay of the Vaccination and Testing Emergency Temporary Standard.
  • OSHA announced that it will not issue citations for noncompliance with the ETS until January 10 and will not issue citations for noncompliance with testing programs until February 9.
  • Following the Sixth Circuit’s order, a group of 26 trade groups filed an Emergency Application for Immediate Stay of Agency Action Pending Disposition of Petition for Review requesting either an immediate stay of the effective date of OSHA ETS or, alternatively, that the application is treated as both a motion to stay and a petition for writ of certiorari to the Supreme Court. Several State Attorneys General have also filed a similar motion.
  • The Supreme Court has set a December 30 deadline for the federal government to respond to the various emergency motions to stay the mandate. Oral arguments are scheduled for January 7, 2022.

CMS Vaccine Mandate

On November 30, a federal court in Louisiana issued a nationwide preliminary injunction preventing the CMS from enforcing its vaccine mandate rule. On December 15, the Fifth Circuit Court of Appeals stayed the injunction for all states except for 14 states who are currently part of a lawsuit.

Here is the most updated information regarding the CMS vaccine mandate:

  • The CMS rule is preliminarily enjoined in the following states: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming.
  • The CMS rule is no longer enjoined in the following 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 rule is also no longer enjoined in the District of Columbia.
  • However, CMS has announced that, pending the resolution of the litigation, it is not enforcing its mandate.
  • The federal government has filed Motions in the Supreme Court seeking dissolution of the injunction. The Supreme Court has set a December 30 deadline for a briefing on the issue, and oral arguments are scheduled to be held on January 7, 2022.

Federal Contractor Vaccine Mandate

A federal district judge in Georgia issued a nationwide preliminary injunction on December 7 against the Federal Contractor Vaccination Mandate, preventing enforcement of the vaccine mandate that was established for federal contractors.

Here is the most updated information regarding the Federal Contractor Vaccine Mandate:

  • On December 17, the Eleventh Circuit denied the administration’s request to dissolve the nationwide preliminary injunction.
  • The Eleventh Circuit set an expedited schedule for briefing on the merits of the appeal extending into late January.
  • The Safer Federal Workforce Task Force announced that the Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order (hereinafter, “Excluded State or Outlying Area”).

[1] North Carolina OSHA announced on November 10 that the department will not adopt or enforce the new OSHA ETS until all of the current lawsuits challenging the ETS have been resolved.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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