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We had a very busy weekend as it related to Vaccine Mandates. Below is a quick review of all the activity.

On the evening of December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the federal Occupational Safety and Health Administration (OSHA) COVID-19 Emergency Temporary Standard (ETS), which imposes “vaccinate or test” requirements for private employers. Within two hours, a broad coalition of 26 trade groups filed the first of several emergency appeal applications to the U.S. Supreme Court requesting a stay pending Supreme Court review. OSHA then granted employers a limited grace period to comply with the ETS’ requirements. In contrast, the same day, the Eleventh Circuit upheld the nationwide injunction against the vaccinate mandate applicable to federal contractors, pending further review. Although this situation remains fluid, employers subject to the OSHA ETS should consider preparing for compliance on the revised timetable, as should federal contractors with 100 or more employees.

LARGE BUSINESS MANDATE

Where it stands: The OSHA rule is allowed to take effect, at least for now. On Dec. 17, a three-judge panel of the 6th U.S. Circuit Court of Appeals allowed the mandate, reversing a decision by a panel of judges in the New Orleans-based 5th circuit. The legal challenges originally were filed in various U.S. appeals courts. The cases subsequently were consolidated into the Cincinnati-based 6th circuit, which was selected at random.

What OSHA said: “To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”

What’s next: Republican attorneys general, business associations and several conservative groups immediately appealed the 6th circuit ruling to the U.S. Supreme Court. In the meantime, OSHA announced that it would not issue citations before Jan. 10 for its vaccination mandate or before Feb. 9 for its testing requirement to give employers time to adjust. Within an hour of the Sixth Circuit’s Order, a group of 26 trade groups (the “Applicants”) filed an Emergency Application for Immediate Stay of Agency Action Pending Disposition of Petition for Review, directed to Supreme Court Justice Brett Kavanaugh, who oversees the Sixth Circuit. The Application requests an immediate stay of the effective date of the OSHA ETS, or in the alternative that the application be treated as both a motion to stay and a petition for writ of certiorari to the Supreme Court. Applicants also asked to stay the ETS pending resolution of the Supreme Court’s review and to set the case for expedited review.

HEALTH WORKER MANDATE

What it would do: Under a rule published by the Centers for Medicare & Medicaid on Nov. 5, a wide range of health care providers that receive federal Medicare or Medicaid funding were to require workers to receive the first dose of a COVID-19 vaccine by Dec. 6 and be fully vaccinated by Jan. 4. The rule would affect more than 17 million workers in about 76,000 health care facilities and home health care providers.

Who’s challenging it: The rule was challenged in four separate lawsuits filed by Republican-led states, mostly in groups. Florida and Texas mounted their own challenges. The states argued that there were no grounds for an emergency rule, that CMS had no clear legal authority to issue the mandate and that the rule infringes on states’ responsibilities.

Where it stands: The rule is on hold nationally, but a ruling Dec. 15 gives it the possibility of moving ahead in about half the states. A Missouri-based federal judge issued a preliminary injunction Nov. 29 barring its enforcement in 10 states that had originally sued. The next day, a Louisiana-based federal judge issued a preliminary injunction barring enforcement in the rest of the states. But on Dec. 15, that was narrowed to the 14 suing in that court. And on Dec. 15, a federal judge in Texas granted an injunction that applies only to that state. After the decisions, there is a possibility the mandate could be enforced in 25 states where no injunction is in place. The Centers for Medicare & Medicaid have not said whether they will pursue that path.

What’s next: The court rulings are being appealed by the Biden administration. On Dec. 16 the administration asked the Supreme Court to block the lower court orders that are keeping the mandate from going into effect in about half of the states. The case filed in Missouri is being considered by the St. Louis-based 8th U.S. Circuit Court of Appeals. The case filed in Louisiana, which was brought by a coalition of 14 states, is being considered by the 5th Circuit. So far, there’s been no move to consolidate the challenges in a single court.

FEDERAL CONTRACTOR MANDATE

What would it do: Under an executive order issued by Biden on Sept. 9, contractors and subcontractors for the federal government are required to comply with workplace safety guidelines developed by a federal task force. That task force subsequently issued guidelines requiring that new, renewed or extended contracts include a clause requiring employees to be fully vaccinated Jan. 18. That meant those receiving a two-dose vaccine must get their second shot by Jan. 4. There are limited exceptions for medical or religions reasons. The requirements could apply to millions of employees.

Who’s challenging it: The guidelines have been challenged through more than a dozen lawsuits, including seven brought by Republican-led states or coalitions of states. The arguments are similar to those against other vaccine mandates, asserting the Biden administration exceeded the procurement rule-making powers granted by Congress, infringed on states’ responsibilities and didn’t properly gather public comment.

Where it stands: The rule is on hold. A federal judge in Georgia issued a ruling Dec. 7 prohibiting enforcement of the requirement for contractors nationally. The ruling came a week after a judge in Kentucky barred enforcement of the requirement in Kentucky, Ohio and Tennessee.

What’s next: Legal challenges pending in several other states could lead to additional rulings on requests for injunctions. The Kentucky or Georgia rulings also could be appealed.

So what now?

We cannot predict whether the Supreme Court will agree to take up the first Application addressing the OSHA vaccine mandate described above or others that followed, or grant a stay pending review of the Application. However the reasons of great public significance and conflict amount the Fifth and Sixth courts seem compelling.

While the federal contractor mandate remains stayed, the ETS is not stayed at this time, although OSHA has offered a brief holiday extension of the applicable timelines. I suggest employers continue to develop COVID-19 programs to comply with the “vax or test” mandate, including collecting employees’ vaccination status, drafting an ETS policy, putting together a testing protocol, and training plans for employees on relevant processes and policies, with the revised January 10 and February 9 deadlines in view.

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