Courts have blocked three different federal COVID-19 vaccination mandates issued under the Biden administration. Since the court orders staying the different federal mandates are at this time only preliminary, it is premature to say the threat posed by the federal mandates is past. It appears the mandates will be at a minimum delayed, but there will inevitably be appeals, perhaps up to the Supreme Court. There are also many private, state and local mandates that are not affected by these court rulings.

To learn more, read the following important developments on the federal contractor, Occupational Safety and Health Administration and Centers for Medicaid and Medicare Services vaccination mandates.

Federal COVID-19 Vaccination Mandates Legal Challenges

Federal Contractor COVID-19 Vaccination Mandate

On Dec. 7, a Georgia federal judge granted ABC’s motion to intervene and issued a nationwide preliminary injunction order against the federal contractor COVID-19 vaccination mandate. Judge Baker’s decision makes it clear that ABC’s participation in the case was essential to getting nationwide relief, which would otherwise have been limited to the states who sued. This is a big win for ABC, the only private business group that joined the states in suing over this mandate. Read ABC’s press release.

On Dec. 9, the U.S. Department of Justice filed their expected appeal to the 11th Circuit from the preliminary injunction, and the administration has filed a motion for emergency stay of the judge’s ruling pending final review on the merits.

As a result of the legal challenges against the federal contractor COVID-19 vaccination mandate, the Safer Federal Workforce Taskforce, which provides the guidance implementing the federal contractor vaccination mandate, provided the below update on Dec. 9:

Regarding Applicable Court Orders and Injunctions: The Office of Management and Budget has issued guidance on implementing requirements of Executive Order 14042 while ensuring compliance with applicable court orders and injunctions, including those that are preliminary and may be supplemented, modified, or vacated, depending on the course of ongoing litigation.

• For existing contracts or contract-like instruments (hereinafter “contracts”) that contain a clause implementing requirements of Executive Order 14042: The Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order (hereinafter, “Excluded State or Outlying Area”). In all other circumstances, the Government will enforce the clause, except for contractor employees who perform substantial work on or in connection with a covered contract in an Excluded State or Outlying Area, or in a covered contractor workplace located in an Excluded State or Outlying Area.
• Currently Excluded States and Outlying Areas: All of the United States and its outlying areas, including:
  1. The Fifty States;
  2. The District of Columbia;
  3. The commonwealths of Puerto Rico and the Northern Mariana Islands;
  4. The territories of American Samoa, Guam, and the United States Virgin Islands; and
  5. The minor outlying islands of Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Atoll.
• NOTE: Federal agency COVID-19 workplace safety protocols for Federal buildings and Federally controlled facilities still apply in all locations. Contractor employees working onsite in those buildings and facilities must still follow Federal agency workplace safety protocols when working onsite.

Because the possibility remains that the stay could be lifted without much notice, it is recommended that covered federal contractor employers do the following:

• Continue to monitor legal developments in Newsline and the Beltway Blueprint.
• Plan for the possibility of a COVID-19 vaccination mandate
• Encourage employees to get vaccinated.
• See ABC’s COVID-19 vaccination toolkit, resources and guidance for federal contractors to keep workers safe on construction jobsites.
• Follow all safety protocols as required by court-approved federal, state and local governments.

6th Circuit to Hear Challenges to OSHA ETS

On Nov. 12, the U.S. Court of Appeals for the 5th Circuit granted a motion to stay the U.S. Department of Labor’s Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard, which applies to employers with 100 or more employees. 

Shortly after, OSHA announced that it has suspended activities related to the implementation and enforcement of the ETS, pending future developments in the litigation.

On Nov. 16, via lottery, the U.S. Court of Appeals for the 6th Circuit was chosen to hear challenges to the OSHA ETS, which includes ABC’s petition for review filed on Nov. 9. DOL has filed a motion to lift the stay. A decision could be issued any day now. 

Additionally, on Nov. 30, the agency announced that it was extending the comment period for the OSHA ETS to Jan. 19, 2022, to allow stakeholders additional time to review the ETS and collect information and data necessary for comment. In early January, ABC will circulate a comment letter template for ABC contractor members to submit to the docket.

On Dec. 8, ABC wrote to U.S. senators to express its support of S.J. Res. 29, which would stop the Biden administration’s OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard. ABC will consider the vote as a “KEY VOTE” for its 117th Congressional Scorecard. Read ABC’s letter. The Joint Resolution passed in the Senate by a vote of 52 to 48 on Dec. 8. 

Because the possibility remains that the stay could be lifted without much notice, it is recommended that covered employers do the following:

• Continue to monitor legal developments in Newsline and the Beltway Blueprint.
• Plan for the possibility of a COVID-19 vaccination and testing mandate.
• Review your vaccination and testing policies. If you currently don’t have policies, consider adopting them. Policy templates are available on the OSHA Vaccination and Testing ETS website.
• Prepare for logistical challenges of testing.
• Encourage employees to get vaccinated.
• See ABC’s COVID-19 vaccination toolkit.
• Follow all safety protocols as required by court-approved federal, state and local governments.

CMS COVID-19 Vaccination Mandate for Health Care Staff (and Contractors)

On Nov. 30, a federal court in Louisiana issued a nationwide preliminary injunction against the Centers for Medicare and Medicaid Services’ COVID-19 vaccination mandate for health care staff. The CMS mandate applies to a wide range of people working at health care facilities, including employees, trainees, students, volunteers or contractors who provide any care, treatment or other services for the facility. This ruling is of interest to any ABC members who perform construction work at health care facilities. A court in Missouri had issued a more limited injunction.

CMS has appealed both decisions and has filed motions for stays of these orders. Additionally, CMS posted the following, “While CMS remains confident in its authority to protect the health and safety of patients in facilities funded by the Medicare and Medicaid programs, it has suspended activities related to the implementation and enforcement of this rule pending future developments in the litigation.”

The mandate contemplated implementation in two phases. For phase one, staff at all health care facilities covered by the regulation must have received, at a minimum, the first dose of a two-dose vaccine or a single-dose COVID-19 vaccine by Dec. 5. For phase two, staff were to be fully vaccinated by Jan. 4. Exceptions were permitted for those who were granted religious or medical exemptions from the COVID-19 vaccine, as well as for staff members for whom COVID-19 vaccination must be temporarily delayed, as recommended by the CDC.

Because the possibility remains that the stay could be lifted without much notice, it is recommended that covered contractor employers do the following:

• Continue to monitor legal developments in Newsline and the Beltway Blueprint.
• Plan for the possibility of a COVID-19 vaccination mandate.
• Encourage employees to get vaccinated.
• See ABC’s COVID-19 vaccination toolkit.
• Follow all safety protocols as required by federal, state and local governments.