Courts Issue Contradictory Rulings on Federal COVID-19 Vaccine Mandates

12/21/21 — Federal courts have issued contradictory rulings on implementation of employee COVID-19 vaccination mandates issued by OSHA and CMS. While a stay on implementation of the OSHA vaccination mandate has been reversed, injunctions against implementation of the CMS healthcare personnal COVID-19 vaccination mandate are still in effect in 24 states. The OSHA vaccination mandate does not apply to employees in healthcare facilities governed under Medicare and Medicaid rules.

Background

On November 5, 2021, two federal agencies issued employee COVID-19 vaccine mandates. The Occupational Safety and Health Administration (OSHA) issued COVID-19 Vaccination and Testing Emergency Temporary Standard. This ETS requires employers with 100 or more employees to enforce a mandatory COVID-19 vaccination policy or require unvaccinated employees to provide a weekly negative COVID-19 test and wear a face covering. The OSHA vaccination ETS covers workplaces not regulated by Medicare and Medicaid rules.

On the same day, the Centers for Medicare and Medicaid Services (CMS) issued the Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule. The rule requires all healthcare facilities regulated under Medicare and Medicaid rules to implement COVID-19 vaccination mandates for all employees and develop exemption policies based on recognized medical conditions or religious beliefs.

Shortly after the OSHA and CMS vaccination mandates were issued, courts put stays on implementation of the rules. On Friday, December 17, a U.S. Court of Appeals dissolved a lower court’s stay on the OSHA COVID-19 vaccination ETS and OSHA has resumed implementation of the vaccination ETS.

Two separate federal district courts issued preliminary injunctions against implementation of the CMS rule, covering a total of 24 states (AL, AK, AZ, AR, GA, ID, IN, IA, KS, KY, LA, MS, MO, MT, NE, NH, ND, OH, OK, SC, SD, UT, WV, WY).

The U.S. Supreme Court has called for additional briefing on these cases by December 30. As of December 21, the OSHA Vaccination and Testing ETS is being implemented nationwide, and the CMS COVID-19 healthcare staff vaccination mandate is begin implemented in facilities in states not listed above.