12/01/2021

ORCA Bulletin: Injunction Granted Against Vaccine Mandates

UPDATE:    INJUNCTIONS GRANTED AGAINST VACCINE MANDATES

Yesterday, November 30, 2021, two courts granted injunctions against the federal contractor vaccine mandate and the CMS Mandate.

• The Eastern District of Kentucky District Court granted a preliminary injunction prohibiting enforcement of the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio and Tennessee during the pendency of the litigation.
• President Biden signed Executive Order 14042 on September 9, 2021 directing the Safer Federal Workforce Task Force to issue guidance regarding adequate COVID-19 safety protocols.  That Guidance was issued on September 24, 2021 and requires all covered employees to be vaccinated by January 4, 2021.
• In granting the preliminary injunction, the Court held that the President exceeded his authority under the Federal Property and Administrative Services Act (FPASA).
• Further, the Court explained that due to the vaccine mandate applying to employees who work entirely from home, the same logic could lead to the FPASA being used to permit federal agencies to refuse to contract with contractors “who employ individuals over a certain BMI for the sake of economy and efficiency during the pandemic?  After all, the CDC has declared that ‘obesity worsens the outcome from COVID-19.’”

• The Western District of Louisiana District Court granted a preliminary injunction prohibiting enforcement of the CMS vaccine mandate for healthcare workers during the pendency of the litigation throughout the United States.  On Monday, the Eastern District of Missouri also issued an injunction against the CMS vaccine mandate covering 15 states.
• The Center for Medicare and Medicaid Services (CMS) issued a vaccine mandate on November 5, 2021 requiring all staff of covered healthcare providers to be fully vaccinated by January 4, 2021.
• In granting the preliminary injunction, the Court found that it appeared that CMS violated the Administrative Procedures Act by not allowing for notice and comment as required.  The Court notes that CMS took almost two months to prepare the interim final rule showing that the situation was not so urgent that notice and comment were not required.
• The Court also found that it is likely that CMS exceeded their authority in enacting the vaccine mandate and that the mandate is arbitrary and capricious.  The Court also noted that “The rejection of natural immunity as an alternative is puzzling” and that “The ‘evidence’ CMS relied upon in rejecting that alternative is not provided.” Further, the Court questioned: “If boosters are needed six months after being ‘fully vaccinated,’ then how good are the COVID-19 vaccines, and why is it necessary to mandate them?”

• The OSHA ETS requiring, among other things, vaccines and/or testing for employers with 100 employees or more remains stayed at this time. 
• OSHA has appealed the stay (while stating that it will not enforce the ETS during the stay) in the 6^th Circuit. 
• Several unions, including the United Food and Commercial Workers International Union, AFL/CIO-CLC and the American Federation of Labor-Congress of Industrial Organizations requested that the case be transferred to the D.C. Circuit because the D.C. Circuit handled the Unions’ litigation to compel OSHA to promulgate an ETS for COVID-19 in 2020.
• We expect decisions on these requests to be issued shortly.

• Federal employees and the Military have also been informed that they will not be terminated at this time if they remain unvaccinated.

If you are keeping score, the federal vaccine mandates appear to be falling or at least are being paused.  However, in most states, private employers are generally able to mandate vaccines for its employees if an accommodation process for medical and religious reasons is provided.

We will continue to update you regarding the status of the COVID-19 vaccine/testing mandates.

Questions? Contact Gary Auman or any of the other attorneys at Auman, Mahan and Furry 
(937) 223-6003.