The end of November brought a flurry of vaccine mandate litigation. Two federal courts issued preliminary injunctions blocking the Centers for Medicare and Medicaid Services (“CMS”) mandate and the federal contractor vaccine mandate.
CMS Vaccine Mandate Blocked Nationwide
CMS had issued an emergency regulation requiring COVID-19 vaccination of eligible staff at health care facilities that participate in the Medicare and Medicaid programs. Health care workers were to get their first dose by December 6, 2021 and be fully vaccinated by January 4, 2022. However, on November 30, 2021, a federal district court judge in Louisiana issued a preliminary injunction temporarily blocking the CMS mandate from going into effect. This decision closely followed an earlier federal district court decision that blocked the CMS mandate for health care workers in the ten states that had filed the lawsuit attempting to block the mandate. State of Missouri, et al. v. Biden, et. al, No. 4:21-cv-01329-MTS, (E.D. Mo., Nov, 29, 2021) (order granting preliminary injunction).
In the order granting the recent preliminary injunction, the Court heavily relied upon the Fifth Circuit decision regarding the Occupational Safety and Health Administration (“OSHA”) Emergency Temporary Standard (“ETS”) in which the Fifth Circuit stayed the OSHA vaccine mandate noting the constitutional concerns with the OSHA mandate including that it: (1) exceeded the federal government’s authority under the Commerce Clause; and (2) separation of powers principles casts doubt over OSHA’s power to control individual conduct. BST Holdings, LLC v. Occupational Safety and Health Administration, No. 21-60845 (5th Cir. Nov. 6, 2021) (order staying the OSHA ETS mandate).
The district court found many constitutional issues with the CMS mandate. The district court found that the CMS mandate violated the “major questions doctrine” which is when an agency makes a decision of vast economic and political significance without Congress clearly assigning the decision to an agency. The court further stated that Congress should mandate the vaccine; not a government agency. Even then, it is not clear whether an Act of Congress mandating a vaccine would be constitutional.
Further, the district court found that the plaintiffs were likely to be successful on their argument that the CMS mandate violated certain sections of the Social Security Act that prevents anything in the Social Security Act from exercising any supervision or control over the practice of medicine or the manner in which medical services are provided.
The preliminary injunction will remain in effect until the final resolution of the case, it is reviewed by the Fifth Circuit, or it is reviewed by the United States Supreme Court. While the injunction is in effect, health care workers should still follow their employer’s individual mandates as private employers are still legally allowed to mandate the vaccine for their employees, regardless of the CMS mandate.
Federal Contractor Vaccine Mandate Blocked in Three States
President Biden’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors required federal contractors to ensure employees are vaccinated against COVID-19. Under the executive order, federal contractors were to be fully vaccinated no later than January 18, 2022. Also on November 30, 2021, a federal district court judge in Kentucky issued a preliminary injunction temporarily blocking the vaccine mandate for federal contractors in three states: Kentucky, Ohio, and Tennessee.
In the order granting the preliminary injunction, the judge addressed whether President Biden could use his congressionally delegated authority to manage federal procurement to impose vaccines on the employees of federal contractors and subcontractors. The judge, stated that, “In all likelihood, the answer to the question is no.”
The opinion covers many constitutional issues with the federal contractor mandate that would lead to the plaintiffs being successful on the merits: (1) President Biden exceeded his authority under the Federal Property and Administrative Services Act (the “FPASA”); (2) the executive order implementing the mandate likely violates the Competition in Contract Act (“CICA”); (3) the executive order likely violates the nondelegation doctrine; and (4) the Executive Order violates the Tenth Amendment.
Like the preliminary injunction in effect for the CMS mandate, this decision is not final and the injunction is only temporary. Interestingly, this decision could be appealed to the Sixth Circuit which is the same circuit deciding whether the OSHA mandate is valid and constitutional. Unlike the preliminary injunction for the CMS mandate, this injunction is not nationwide and is only in effect for Kentucky, Ohio, and Tennessee. Other lawsuits are ongoing, and contractors should be prepared for other jurisdictions to decide differently, leading to a patchwork of enforcement for the mandate.
Bugbee and Conkle, LLP will continue to monitor these cases and provide updates.
If you have questions about vaccine mandates or the injunctions, please reach out to someone in the Labor and Employment Practice Group at Bugbee and Conkle. We are experienced in counseling employers regarding vaccine mandates and the ever-changing laws and regulations surrounding vaccine mandates.