Vaccination Mandates: More Court Activity

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

December 10, 2021

 

As we were writing our blog on the NYC vaccination mandate, a federal district court issued a nationwide injunction on the federal contractor COVID-19 vaccination mandate, Executive Order 14042.

Here is the rundown of that decision and additional vaccine-related court developments.

Nationwide Injunction on Federal Contractor Vaccine Mandate

What Happened?

  • A federal district court in Georgia (Southern District) issued an Order on December 7, 2021, granting a preliminary injunction against the government. Now, the government is prohibited 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."

What does that mean?

  • The government is temporarily prohibited from enforcing the vaccine mandate under Executive Order (EO) 14042 against employers that are covered federal contractors and subcontractors. In other words, federal contractor employers do not have to comply with the vaccinate mandate required by EO 14042.
  • As we discussed in last week’s blog, a federal district court in Kentucky also prevented enforcement of the federal contractor vaccine mandate but at that time, the order was limited to the states of Kentucky, Ohio, and Tennessee. Now, the Georgia court order applies throughout the United States.

What is EO 14042?

  • EO 14042, issued on September 9, 2021, requires, among other things, that employees of certain federal contractors and subcontractors receive COVID-19 vaccinations, subject to medical or religious exemptions. The vaccination deadline was originally December 8th , but this was pushed back to January 18th. See our prior blogs here and here for more information.

Where is the decision?

  • The Southern District of Georgia court decision can be found here.

What should employers do?

  • Confer with counsel but this decision currently prohibits the federal government from enforcing the vaccine mandate described in EO 14042 against employers who are covered federal contractors and subcontractors. It does not prevent these employers from implementing their own mandatory vaccination policy, subject to state and local laws.

11th Circuit Denies Florida’s Appeal on CMS Mandate

What Happened?

  • On December 6, 2021, the 11th Circuit court of appeals denied the State of Florida’s request to enjoin the Interim Final Rule (IFR) issued by the Centers for Medicare and Medicaid Services (CMS).

What does that mean?

  • As we previously discussed here, there is already a nationwide injunction preventing the government from enforcing the CMS healthcare COVID-19 vaccine mandate. Therefore, right now, this decision has no practical effect for employers. Why are we talking about it? We wanted you to know that not all courts may agree on the outcome of these government vaccine mandates so employers should stay alert and be ready to comply if required!

What is the CMS IFR?

  • The IFR—Interim Final Rule – is a government mandate from CMS requiring health care workers in hospitals, nursing homes and other health care facilities to get fully vaccinated by Jan. 4, 2022—subject to medical or religious exemptions. Our prior blogs about the IFR are here and here.

Where is the decision?

  • The 11th circuit opinion can be found here.

What should employers do?

  • Employers subject to the IFR should confer with counsel on next steps. Again, nothing prohibits employers from implementing their own mandatory vaccination policy, subject to state and local laws.

6th Circuit Decision on OSHA’S Motion to Dissolve Stay Still Pending

After December 10, 2021, the Sixth Circuit Court of Appeals will decide the outcome of OSHA’s Motion to Dissolve the Stay of the OSHA vaccination mandate, which we reported here.

What Should Employers do?

  • The good news is that most employers, subject to state and local law, may, at the moment, implement their own vaccination policy or not—there is currently no federal mandate requiring them to do so. Specifically:
    • Employers that are federal contractors and subcontractors are not required to comply with the vaccination mandate in EO 14042.
    • Health care facilities and suppliers subject to the CMS IFR are not required to comply the mandate.
    • Private employers subject to the OSHA vaccination mandate are also not required to implement a mandatory vaccination policy.
  • Employers who have employees in New York City (NYC), please confer with counsel and see our blog about NYC’s vaccination mandate here.
  • All of these court decisions will likely be appealed, and the ultimate outcome is unknown. Meanwhile, more cities and states may follow the lead of NYC and implement additional vaccination mandates.

We will be monitoring and waiting. Stay tuned!

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.