On Tuesday, November 30, 2021, the U.S. District Court for the Western District of Louisiana issued a nationwide preliminary injunction halting implementation of the November 5, 2021 Centers for Medicare & Medicaid Services vaccine mandate (“CMS mandate”). The Court held, “Finding that the Government Defendants do not have the authority to implement the CMS Mandate, this Court GRANTS Plaintiff States’ Motion for Preliminary Injunction [Doc. No. 2] and IMMEDIATELY ENJOINS and RESTRAINS the Government Defendants from implementing the CMS Mandate.”
One week later on December 7, 2021, the U.S. District Court for the Southern District of Georgia issued a nationwide preliminary injunction halting implementation of Executive Order 14042, requiring that contractors and subcontractors performing work on certain federal contracts ensure that their employees and others working in connection with the federal contracts be fully vaccinated against COVID-19, by no later than January 18, 2022. The Court held, “In this case, Plaintiffs will likely succeed in their claim that the President exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act when issuing Executive Order 14042.”
Notably, neither of these rulings prevent the ultimate enforcement of the federal mandates; that is a decision to be made in later proceedings. These rulings do, however, put a hold on implementation and enforcement of the vaccination mandates pending further legal action.
Recall that the CMS mandate would have required employees of 21 types of Medicare and Medicaid certified health care providers and suppliers to have received one vaccine dose by December 6, 2021, and the final vaccine dose by January 4, 2022. The Interim Final Rule (“IFR”) on the CMS mandate can be accessed here.
Although this preliminary injunction ruling places the CMS mandate on hold until further action by this lower Court (or a higher Court if the ruling appealed), the ruling itself does not revoke the CMS mandate. Rather, the ruling merely, “preserve[s] the status quo” until a final decision is rendered. The full Memorandum Ruling can be accessed here.
As to its reasoning, the Court noted, “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… This matter will ultimately be decided by a higher court than this one. However, it is important to preserve the status quo in this case. The liberty interests of the unvaccinated requires nothing less.” The Court also noted, “This preliminary injunction shall remain in effect pending the final resolution of this case, or until further orders from this Court, the United States Court of Appeals for the Fifth Circuit, or the United States Supreme Court.” Until then, it remains to be seen if some or all of the CMS mandate will be permitted to go into effect at a future date.
Designated employers must remember that California's own vaccine mandates remain in effect. For any California adult care facilities or direct care worker employers covered by the California Department of Health (“CDPH”) September 28, 2021 Order (see here), the State-required vaccination mandates have not been enjoined and require timely compliance by California employers (and employers also are entitled to implement their own mandates if they elect to do so). As a quick refresher, the CDPH September 28, 2021 Order applies to five types of businesses:
a. All workers who provide services or work in Adult and Senior Care Facilities licensed by the California Department of Social Services;
b. All in-home direct care services workers, including registered home care aides and certified home health aides, except for those workers who only provide services to a recipient with whom they live or who are a family member of the recipient for whom they provide services;
c. All waiver personal care services (WPCS) providers, as defined by the California Department of Health Care Services, and in-home supportive services (IHSS) providers, as defined by the California Department of Social Services, except for those workers who only provide services to a recipient with whom they live or who are a family member of the recipient for whom they provide services;
d. All hospice workers who are providing services in the home or in a licensed facility; and
e. All regional center employees, as well as service provider workers, who provide services to a consumer through the network of Regional Centers serving individuals with developmental and intellectual disabilities, except for those workers who only provide services to a recipient with whom they live or who are a family member of the recipient for whom they provide services.
Under the California Order, “All individuals in subdivisions (a) through (e) must have the first dose of a one-dose regimen or the second dose of a two-dose regimen by November 30, 2021.” If you are unsure whether the September 28, 2021 Order applies to your business, you can access the CDPH Frequently Asked Questions here. Take note as well that there are several other industry-specific CDPH COVID-19 vaccine-related Orders in effect (i.e., health care, schools, public employees etc.). You can find information on each of those orders here.
On September 9, 2021, President Biden signed Executive Order 14042 (“Order”). Through that Order, the President instructed the Safer Federal Workforce Task Force (“Task Force”) to issue mandatory guidance regarding, “adequate COVID-19 safeguards,” for federal contractors and subcontractors. The Task Force subsequently issued that guidance on September 24, 2021 (there have been several later updates). The Task Force guidance can be viewed here.
The guidance was very broad, and it applied with limited exceptions to, “any new contract; new contract-like instrument; new solicitation for a contract or contract-like instrument extension or renewal of an existing contract or contract-like instrument; and exercise of an option on an existing contract or contract-like instrument.” The guidance also required all “covered contractors” and “subcontractors” to be fully vaccinated by January 18, 2022, unless “legally entitled to an accommodation.”
As with the President’s other COVID-19 mandates, the Order triggered a number of states to file legal challenges seeking to enjoin the Order. These lawsuits focused their arguments on the belief that the President had overstepped his legal authority in issuing the Order.
On December 8, 2021, U.S. District Court for the Southern District of Georgia issued a nationwide injunction specifically ordering that the Government is, “… ENJOINED, during the pendency of this action or until further order of this Court, from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.” A copy of the order can be found here. Whether the federal contractor vaccine mandate will remain in place will be decided in later proceedings.
Employers covered by the CMS or federal contractor mandates are now in a holding pattern until the litigation surrounding these mandate is finally resolved or the injunctions are dissolved.
Employers are still encouraged to review the requirements of those mandates (see the links above), and to draft compliant policies that can be rapidly implemented should either mandate be revised (in whole or in part) at a future date.
For now, employers should delay their implementation of any new policies or procedures based on these two federal mandates; at least until such time as the injunction issues are resolved. Again, employers are entitled to implement their own company-specific vaccination mandates, and must continue to comply with California state mandates as well.
Please note that the federal vaccine mandate for large employers with 100+ employees was enjoined as well. You can find our previous article on the federal OSHA ETS injunction for large employers here (litigation remains ongoing). For that injunction, there will be critical upcoming hearings at the Sixth Circuit on December 10, 2021.
As always, LightGabler will continue to provide a further update on the status of the OSHA, CMS and federal contractor mandates when available. Stay tuned!
For further information regarding COVID-19 issues, or assistance with other employment law issues, contact the attorneys at LightGabler.