Federal COVID-19 Vaccination Mandates Stayed (December 2, 2021)
Since taking office, President Biden has taken several steps to address the lingering COVID-19 pandemic, including issuing various mandates for employers to require employees to be vaccinated against COVID-19. However, several recent legal actions, including two (2) federal court orders entered on November 30, have brought more setbacks for the administration in those efforts.
CMS Mandate Stayed. The federal vaccine mandate issued by the Centers for Medicare & Medicaid Services (CMS) required healthcare employees at facilities participating in Medicare and Medicaid to be fully vaccinated by January 4, 2022, with the first shot due by December 6. Failure to comply with the vaccine mandate would result in the facility risking the loss of federal funding. However, on November 30, 2021, the U.S. District Court for the Western District of Louisiana issued a temporary nationwide stay against enforcement of the CMS vaccination rule, noting the injunction was effective immediately and would remain in effect until reviewed by an appeals court. (Case No. 3:23-cv-3940; U.S.D.C., Western District of Louisiana, Monroe Division).
Federal Contractor Mandate Stayed. On September 24, 2021, the President issued the “Guidance for Federal Contractors and Subcontractors,” which required all covered contractors to be fully vaccinated by December 8, 2021, unless legally entitled to a religious or medical accommodation. On November 30, 2021, the U.S. District Court for the Eastern District of Kentucky issued an order granting a preliminary injunction with respect to the vaccination mandate for employees working on or in connection with federal contracts in the States of Tennessee, Kentucky, and Ohio. (Case No.: 3:21-cv-55; U.S.D.C., Eastern Dist. Of Kentucky, Central Division).
OSHA ETS Stayed. As we covered previously, all pending lawsuits regarding the emergency temporary standard (ETS) issued by OSHA, covering employers with 100 or more employees, have been consolidated in the Sixth Circuit Court of Appeals for determination. In that consolidated action, OSHA has filed an Emergency Motion to Dissolve the Stay that was issued by the Fifth Circuit Court of Appeals and the court entered an order requiring that the motion must be fully briefed by all parties by December 10, 2021. For now, the Fifth Circuit’s stay of the ETS is in place pending a decision by the Sixth Circuit.
Tennessee. In addition, on December 1, 2021, the State of Tennessee has stopped issuing exemptions for employers who were subject to the CMS or federal contractor vaccination mandates. At this time, Tennessee employers are barred by Tennessee state law from requiring employees to provide proof of vaccination.