OSHA and CMS Vaccine Mandates: Litigation Update

NOTE: On January 13, 2022, the United States Supreme Court issued rulings on both OSHA’s ETS and CMS’s Mandate. The Supreme Court stayed OSHA’s ETS, but stayed the preliminary injunctions that were preventing the CMS Mandate from being enforced in 25 states. For more information, see Supreme Court Blocks OSHA’s Emergency Temporary Standard, Allows CMS Mandate to Move Forward.

Over the past week, federal courts of appeal have issued rulings on the enforceability of both the Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard (“ETS”) and the Centers for Medicare and Medicaid Services’ (“CMS”) “Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule” (“CMS Mandate”).  We have previously issued alerts on the ETS, CMS Mandate, and the litigation challenging all federal vaccine mandates.

OSHA’s ETS Vaccine-or-Test Mandate Restarted Nationwide

On December 17, 2021, the United States Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the ETS.  In response to the Sixth Circuit’s ruling, OSHA has publicly stated it will move forward with implementing the ETS, albeit with a delayed schedule.  OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022, and will not issue citations for noncompliance with the testing requirements before February 9, 2022.  This is provided that the employer is exercising reasonable, good faith efforts to come into compliance with the ETS.  Within hours of the Sixth Circuit’s action, further appeals were filed that may again imperil the ETS’s enforceability.  But for now, the ETS is in effect.

CMS’s Mandate on Hold in 14 States (including Missouri and Kansas), but Restarted Elsewhere (including Illinois)

On December 15, 2021, the United States Court of Appeals for the Fifth Circuit upheld a Louisiana District Court’s preliminary injunction preventing implementation of the CMS Mandate.  However, the Fifth Circuit only upheld the injunction as applied to facilities in the 14 states listed as plaintiffs in the case, paring back the nationwide injunction issued by the District Court.  On December 16, 2021, a federal court in Texas entered a preliminary injunction enjoining the CMS Mandate for facilities in Texas.  The preliminary injunction against implementation of the CMS Mandate granted by the Eastern District of Missouri on November 29, 2021, remains in effect.  The states where the CMS mandate cannot currently be enforced are: Alabama, Alaska, Arkansas, Arizona, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming. 

The federal government has filed an application to the U.S. Supreme Court to stay the injunctions issued by the Missouri and Louisiana District Courts.  The Supreme Court has ordered the plaintiffs from the district court cases to respond to the federal government’s application by December 30, 2021.  As of this writing, CMS has not issued a statement since December 2, 2021, when it stated it had “suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation.”

Next Steps for Clients Covered by the OSHA ETS or CMS Mandate

Employers are understandably wary of taking steps toward compliance in light of the back-and-forth prompted by the ongoing litigation.  While some may roll the dice and trust that litigation will halt the mandates permanently, that approach may carry some risk.  For employers covered by the ETS, OSHA’s expectations are clear, at least today: employers are expected to begin taking steps to come into compliance with the ETS ahead of the now-extended January 10th enforcement date.

CMS’s silence following the administration’s recent partial victory leaves employers in limbo for states not covered by an injunction.  For facilities covered by the CMS Mandate, such facilities should continue to monitor these legal challenges and any guidance issued by CMS regarding how and when it intends to enforce its Mandate.  We will continue to provide updates as developments warrant.

If you have any questions about these challenges or what steps you should take at this point, please contact a Lewis Rice Labor & Employment attorney.