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Legal Challenges To Federal Vaccine Mandates: Where Things Stand Today

Courts have been busy the past several days hearing legal challenges to the three separate federal vaccine mandates that affect employers. Tracking which mandates are still in play in which states can be a labyrinth for employers, so we’ve compiled a quick update on the latest legal developments:

Vaccine Mandate for Healthcare Facilities

 A federal judge in Missouri blocked the Centers for Medicare and Medicaid Services’ (“CMS”) from enforcing its federal vaccine mandate for healthcare facilities by issuing a preliminary injunction. This injunction applies to Medicare and Medicaid certified providers and suppliers in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. If this case is appealed, it will be heard by the United States Court of Appeals for the Eighth Circuit.

Yesterday (November 30), a Louisiana federal judge granted a preliminary injunction against the CMS healthcare vaccine mandate and expanded the scope of the injunction to apply nationally. An appeal of this injunction will be heard in the Fifth Circuit. There are two other challenges to the CMS mandate pending in federal courts in Florida and Texas.

Vaccine Mandate for Federal Contractors

Also yesterday, a federal judge in Kentucky granted a preliminary injunction against President Biden’s Executive Order mandating COVID-19 vaccines for covered federal contractor employees. The injunction only applies to Kentucky, Ohio, and Tennessee. If this decision is later appealed, it will be heard in the Sixth Circuit.

As of today, the federal contractor vaccine mandate (which does not include a testing opt-out) is still enforceable in all other remaining states - including Nebraska and neighboring states. However, the federal contractor mandate is being challenged in other lawsuits that could affect enforcement in Nebraska, Iowa, South Dakota, and several other states. A decision on those challenges may be coming soon.

OSHA ETS Vaccine-or-Test Mandate for Private Employers with 100+ Employees

Federal law called for OSHA’s vaccinate-or-test Emergency Temporary Standard (“ETS”) mandate for employers with 100+ to be decided directly in a federal appeals court. The Fifth Circuit ruled first and halted enforcement of the ETS nationwide. That stay is still in effect today and OSHA has suspended enforcement of the ETS pending further litigation. Because legal challenges to the ETS have been filed in numerous other jurisdictions, all challenges were consolidated by lottery, and the Sixth Circuit will decide on all the ETS combined challenges. This means that the Sixth Circuit could continue the Fifth Circuit’s stay or not. Either way, a challenge to the Supreme Court is likely (and not just for the ETS but all three mandates).

Three different mandates, countless legal challenges, and several federal court decisions have created a patchwork for employers in determining whether they are subject to a mandate. While it is likely the United States Supreme Court will be the ultimate decisionmaker for the fate of all three mandates, it is hard to predict when that will happen. McGrath North will continue to monitor the legal developments and keep you posted. In the meantime, please reach out to McGrath North’s Labor and Employment Group if you have any questions.