Federal vaccine mandates: Where employers stand now

This week in Vaccine Mandate/Injunction Land.

UPDATE (12/18/21): The stay on the OSHA Emergency Temporary Standard has been lifted. Details here.

Well, kids, it's been another riotous week in the world of federal vaccine mandates. Here is where everything stands as of Friday morning Eastern Time, December 17, 2021:


OSHA ETS. The Emergency Temporary Standard issued by the Occupational Safety and Health Administration applies to most private sector employers with 100 or more employees. The ETS has been stayed nationwide (put on hold) since November 6, the day after it was issued. So many unhappy employers across the nation sued over the ETS that the cases were consolidated and sent to a federal appeals court chosen by lottery, which will issue one ruling in all the cases. The winning court, as we all know, is the U.S. Court of Appeals for the Sixth Circuit.

The anti-mandate parties wanted the full Sixth Circuit (16 judges, with a majority of Republican appointees) to hear the cases. The Government wanted the cases to initially be decided by a three-judge panel, presumably because that would give the Government a fighting chance of getting a majority of two Democratic appointees.

The full Sixth Circuit decided on Wednesday that the cases would initially be decided by a three-judge panel, not by all 16 judges. We don't know who the three judges on the panel are, but we can speculate. The judges voted 8-8 not to hear the case en banc (that is, by the full court). Thirteen of the 16 judges wrote or joined in opinions. The word on the street is that the three judges who did not write or join in opinions are the members of the panel. That would stand to reason.

If the speculation is correct, the panel consists of Judge Julie Smith Gibbons and Judge Richard Allen Griffin (both appointed by George W. Bush) and Judge Jane Branstetter Stranch (appointed by Barack Obama).

Federal contractor mandate. As Cara Crotty has written, a federal judge in Georgia on December 7 preliminarily enjoined the federal contractor vaccine mandate nationwide. Kicking the mandate while it's down, a federal judge in Louisiana yesterday granted yet another preliminary injunction to three states that challenged the mandate -- Indiana, Louisiana, and Mississippi.

CMS mandate (health care employers). OK, this one is complicated, but fortunately Dave Kurtz and Sabrina Punia-Ly have explained it all for us. The vaccine mandate issued by the Centers for Medicare & Medicaid Services, which applies to certain employers who receive Medicare or Medicaid funds, was preliminarily enjoined on November 29 by a federal court in Missouri. The injunction applied only to the states that had filed the lawsuit challenging the mandate. Those states were Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. The next day, a federal court in Louisiana issued a preliminary injunction against the mandate in the remainder of the 50 states.

This week, the U.S. Court of Appeals for the Fifth Circuit ruled that the Louisiana injunction should not apply nationwide but only to the states that were plaintiffs in that lawsuit. Those states are Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia.

Meanwhile, in the Lone Star State, a federal judge on Wednesday granted a preliminary injunction against the mandate that applies only in the State of Texas.

So, if you're keeping score, as of yesterday, the CMS mandate is enjoined in 25 of the 50 states and not enjoined in the other 25 of the 50 states. So far, the CMS has not announced what it plans to do, if anything, in the way of enforcement.

"We're working on it!"

However, the Government did apply yesterday to the U.S. Supreme Court to have the Louisiana and Missouri injunctions stayed while it appeals those decisions. Here's the Louisiana application, and here is the Missouri application. (Texas and Louisiana are both in the Fifth Circuit, so a Fifth Circuit decision in the Louisiana case would indirectly apply to the Texas case, as well.) 

Oh! Oh! I almost forgot! In an unusual win for the Government, a federal judge in Florida denied the motion of the State of Florida to enjoin the CMS mandate. Florida appealed and asked the U.S. Court of Appeals for the Eleventh Circuit to issue a preliminary injunction against the mandate while the appeal was pending. The 11th Circuit said no. 

I hope I haven't missed anything. I probably have.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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