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Biden Administration’s
Vaccine-or-Test Mandate
for Large Employers,
Allows Healthcare Worker Mandate

The Biden Administration issued COVID-19 vaccine mandates for (1) private businesses with 100 or more employees and (2) certain healthcare workers. During the past few months, these federal vaccine requirements for the workplace have alternated between being blocked and unblocked by a variety of court rulings and additional litigation maneuvers outlined below. On January 13, 2022, the U.S. Supreme Court gave the green light for the healthcare rule to take effect nationwide but halted the vaccine-or-test rule for large private businesses. On January 25, 2022, the Biden Administration withdrew the private-sector vaccination mandate after the Supreme Court blocked its implementation. On February 18, the Sixth Circuit dismissed litigation against OSHA’s large employer rule as moot following the Supreme Court’s January ruling. The court granted the federal government’s January 2022 motion to dismiss numerous petitions consolidated in the Sixth Circuit after the high court halted the rule on January 13. The Occupational Safety and Health Administration said it would continue to work on imposing the vaccination requirement through the regular—and lengthier—rule-making process.

McDonald Carano attorneys Kristen Gallagher and Philip Mannelly provide the following update on the status of these two mandates and are available for assistance navigating any employment and labor law issues relating to COVID-19. (Please click here for information about the status of the Biden Administration’s vaccine mandate for employees of federal contractors and subcontractors.)

The numerous rulings, appeals, and lack of definitive information about the timing and enforcement of the federal mandates has placed employers in a difficult position. Some employers took steps to comply with the new rules by not suspending or cancelling their vaccine requirements for employees, and other employers temporarily suspended mandates and moved toward encouraging employees to report vaccination status and get vaccinated, but did not discipline workers for not complying with federal mandates that have been in flux.

  1. Vaccine-or-Test Mandate for Employers with 100 or More Employees

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) published an Emergency Temporary Standard (ETS) which requires businesses with 100 or more employees to mandate that employees are vaccinated or tested weekly for COVID-19. The ETS was scheduled to take effect January 4, 2022.

On December 17, 2021, a split Sixth Circuit, 2-1, reinstated the mandate after lifting a stay issued on November 6 by the Fifth Circuit that temporarily blocked the ETS from going into effect. On December 20, the U.S. Supreme Court received emergency applications from states, religious groups and private businesses requesting the Court to pause enforcement of the mandate while they challenge the rule.

On January 13, 2022, the Supreme Court stayed the rule pending disposition of the applicants’ petitions for review in the Court of Appeals for the Sixth Circuit. In an unsigned opinion, the Court’s conservative six-justice majority said “Applicants now seek emergency relief from this Court, arguing that OSHA’s mandate exceeds its statutory authority and is otherwise unlawful. Agreeing that applicants are likely to prevail, we grant their applications and stay [OSHA’s] rule. … Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate.”

According to the Court, “the question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures.” The Court emphasized a “crucial distinction — between occupational risk and risk more generally — and accordingly the mandate takes on the character of a general public health measure, rather than an occupational safety or health standard.”

While the Court recognized that OSHA has authority to regulate occupation-specific risks related to COVID–19, such as researchers who work with the COVID–19 virus or those working in particularly crowded or cramped environments, the Court noted that “the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face” and “OSHA’s indiscriminate approach fails to account for this crucial distinction.”  The Court stated that “targeted regulations are plainly permissible” in circumstances in which the virus “poses a special danger because of the particular features of an employee’s job or workplace.”

On January 25, 2022, the Biden Administration withdrew the private-sector vaccination mandate after the Supreme Court blocked its implementation. On February 18, the Sixth Circuit dismissed legal challenges as moot following the Supreme Court’s January ruling. The s court granted the federal government’s January 2022 motion to dismiss numerous petitions consolidated in the Sixth Circuit challenging the OSHA emergency temporary standard after the Supreme Court halted the rule on Jan. 13. The Occupational Safety and Health Administration said it would continue to work on imposing the vaccination requirement through the regular—and lengthier—rule-making process. The Buckeye Institute, a legal group representing one set of employers, said it would continue to challenge the administration’s effort to impose the rule through the regular rule-making process.

While the challenges to the ETS make their way through the court system, employers are faced with looking toward state and local authorities for compliance obligations and developing COVID-19 policies. Employers with operations in different states and jurisdictions may potentially have different rules based on the mandates and prohibitions relating to vaccines, testing, masks or other COVID-19-mitigation measures that are in place where employees are located.

Litigation Background:

In its December 17 ruling, the Sixth Circuit’s two-judge majority said legal challenges to the mandate were likely to fail and argued that Congress gave OSHA broad power to issue emergency workplace rules to protect people from severe dangers like infectious diseases. “OSHA has wide discretion to form and implement the best possible solution to ensure the health and safety of all workers, and has historically exercised that discretion. It makes sense that OSHA’s authority contemplates the use of medical exams and vaccinations as tools in its arsenal,” wrote Judge Jane Stranch for the court. The majority opinion also rejected a constitutional challenge to the rule.

On November 6, the Fifth Circuit granted a preliminary stay on an emergency basis that prevented OSHA from moving forward to implement the ETS. The Fifth Circuit found that OSHA’s rules improperly asserted “virtually unlimited power to control individual conduct under the guise of a workplace regulation,” that challenges to the ETS “show a great likelihood of success on the merits”, the mandate raises “grave statutory and constitutional issues,” and the rules threaten “the liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s).” On November 16, the Judicial Panel on Multidistrict Litigation consolidated all pending challenges filed around the country to the vaccine-or-test rule and transferred them all to be heard by the Sixth Circuit, which is how the Fifth Circuit lost jurisdiction over its case. On November 23, the Justice Department filed an emergency request with the Sixth Circuit that sought the immediate reinstatement of the rules. The Sixth Circuit issued its ruling on December 17.

  1. Vaccine Mandate for Certain Healthcare Workers

On November 4, the Centers for Medicare and Medicaid Services (CMS) issued an Interim Final Rule requiring all Medicare and Medicaid providers and suppliers be fully vaccinated by January 4. The rule provided no exceptions that would allow for weekly testing. Noncompliant facilities would risk losing Medicare and Medicaid funding. In a memorandum issued to state survey agency directors, the CMS stated it would not enforce the Interim Final Rule during the pendency of court-ordered injunctions.

In an unsigned opinion from a 5-4 majority issued on January 13, 2022, the U.S. Supreme Court allowed the requirement to take effect nationwide while the Biden Administration appeals (to the Eighth and Fifth Circuits) two lower court injunctions that had blocked the rule in parts of the country.

The Supreme Court held that the Secretary of Health and Human Services acted within the authority granted by Congress when it issued the rule and the agency held broad authority “to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.” The court noted that healthcare workers and public-health organizations overwhelmingly support the mandate – “Indeed, their support suggests that a vaccination requirement under these circumstances is a straightforward and predictable example of the health and safety regulations that Congress has authorized the Secretary to impose.”

Pursuant to the court’s order, both (1) the District Court for the Eastern District of Missouri’s November 29, 2021, order granting a preliminary injunction is stayed pending disposition of the federal government’s appeal in the Eighth Circuit and (2) the District Court for the Western District of Louisiana’s November 30, 2021, order granting a preliminary injunction is stayed pending disposition of the federal government’s appeal in the Fifth Circuit. These two appeals are described below.

Litigation Background:

In mid-November 2021, two groups of states — one led by Missouri and the other led by Louisiana — filed requests for preliminary injunctions to block the mandate and requested permanent injunctions. The Missouri-led group includes Nebraska, Arkansas, Kansas, Alaska, Iowa, Wyoming, South Dakota, North Dakota and New Hampshire. The Louisiana-led group includes Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Ohio and Kentucky.

On November 29, the U.S. District Court for the Eastern District of Missouri issued a preliminary injunction against implementation and enforcement of the rule, finding that “Because this mandate significantly alters the balance between federal and state power, only a clear authorization from Congress would empower CMS.” The next day, November 30, the U.S. District Court for the Western District of Louisiana issued a nationwide preliminary injunction holding “There is no question that mandating a vaccine to 10.3 million health care workers is something that should be done by Congress, not a government agency. It is not clear that even an act of Congress mandating a vaccine would be constitutional.”

CMS appealed both decisions and filed motions for stays of the orders in the U.S. Court of Appeals for the Fifth Circuit. On December 15, the Fifth Circuit narrowed the scope of the nationwide injunction issued by the Western District Court to the 14 states that brought the suit and noted that “[The vaccine rule’s] ultimate resolution will benefit from ‘the airing of competing views’ in our sister circuits.” The next day, December 16, the Biden administration filed applications for stays of the preliminary injunctions issued by both the Eastern and Western District Courts with the U.S. Supreme Court, asking that the injunctions be paused while it appeals those decisions in the Eighth and Fifth Circuits. On December 15, an order from U.S. District Judge Matthew J. Kacsmaryk made Texas the twenty-fifth state where the healthcare workers vaccine mandate has been temporarily halted.

About McDonald Carano

In 2024, McDonald Carano celebrates 75 years of serving Nevada’s legal, business, government, and civic communities. More than 60 lawyers and government relations professionals serve state, national, and international clients from our offices in Reno, Las Vegas, and Carson City. McDonald Carano provides legal services and government affairs and advocacy counsel to startups, corporations, trade associations, nonprofits, public entities, high-net-worth individuals, investors, and public-private partnerships throughout Nevada. We are proud to be your Nevada law firm since 1949.

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