ANALYSIS
The Biden Administration’s broad campaign of COVID-19 vaccination mandates is crumbling before our eyes in the face of multiple blows brought by court actions, a rebellion mounted by some federal legislators and state governors, and his own decision to stall enforcement of the federal employee requirement.
Here is where we stand at this time, keeping in mind that the legal landscape continues to shift on a daily basis.
Mandate postponed for federal employees.
At the end of November, President Biden suddenly announced that federal employees will no longer risk losing their jobs if they refuse to get vaccinated—at least until early next year. This will spare the 3.5% of the 2.1 million estimated federal workers who are believed to remain unvaccinated from the threat of being fired over the holiday season.
However, it is not clear how far the government will go in actually disciplining the recalcitrant civil servants once January 2022 rolls around. The White House simply told agencies to not take any further actions other than a letter of reprimand “for most employees who have not yet complied with the vaccination requirement until the new calendar year begins in January.”
The President’s critics have suggested that he was deferring to the wishes of the powerful American Federation of Government Employees (AFGE), the 700,000-member civil service union that contributed heavily to support Biden’s presidential run and to other Democrats’ political campaigns over the years. No such pause in enforcement has been issued for any of the other vaccine mandates.
“The administration has done the right thing by listening to federal workers, taking their concerns seriously, and giving those who haven’t yet gotten vaccinated some peace of mind this holiday season,” said Everett Kelley, national prsident of AFGE. “Once again, President Biden has demonstrated his commitment to hearing from rank-and-file federal employees through their unions and responding to workers’ concerns.”
Courts block the CMS healthcare workers mandate.
On Nov. 29, the Eastern District Court of Missouri issued a preliminary injunction blocking the Center for Medicare and Medicaid Services (CMS) from enforcing its vaccine mandate for healthcare workers at Medicare- and Medicaid-certified medical facilities in 10 states: Alaska, Arkansas, Iowa, Kansas, Missouri, New Hampshire, Nebraska, North Dakota, South Dakota, and Wyoming.
On Nov. 30, Federal District Court Judge Terry Doughty, sitting in Monroe, La., issued its own preliminary injunction, stopping the CMS from enforcing the requirement in all of the remaining states, creating a nationwide stay stopping the CMS rule from taking effect.
Judges Take a Stand
Doughty’s comments echoed those the Missouri judges made when they blocked CMS from requiring millions of healthcare workers at facilities receiving Medicare and Medicaid payments to either get vaccinated or to lose their jobs.
“There is no question that mandating a vaccine to 10.3 million healthcare workers is something that should be done by Congress, not a government agency,” Doughty said in his decision. “It is not clear that even an Act of Congress mandating a vaccine would be constitutional.”
Echoing earlier comments by federal appeals court judges granting a preliminary injunction regarding the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) requiring vaccinations of the workforces of employers with 100 or more works, Doughty took a dim view of CMS issuing a peremptory command instead of embarking on a rulemaking proceeding allowing public comment and more detailed consideration.
“It took CMS almost two months—from Sept. 9, 2021, to Nov. 5, 2021—to prepare the interim final rule at issue,” he said. “Evidently, the situation was not so urgent that notice and comment were not required. If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency. During a pandemic such as this one, it is even more important to safeguard the separation of powers set forth in our Constitution to avoid erosion of our liberties.”
Noting that other courts, including one federal appeals court, are reviewing similar arguments regarding other mandates in cases that ultimately could be reviewed by the Supreme Court, Doughty added, “This matter will ultimately be decided by a higher court than this one. However, it is important to preserve the status quo in this case. The liberty interests of the unvaccinated requires nothing less.”
Federal contractor order enjoined.
The controversial requirement that federal contractors and subcontractors insist that their employees get the jab also was enjoined by a federal district judge. This time the stay applies only to the states of Ohio, Kentucky and Tennessee, which was as far as the federal judge for the Eastern District of Kentucky was willing to go in this case.
Similar legal challenges to the contractor order have been mounted by state attorneys general in other jurisdictions as well, including Arizona, Florida, Georgia, Oklahoma and Texas. This mandate has been especially contentious because, unlike the OSHA ETS, it does not allow employees who decline to get vaccinated to keep their jobs if they are willing to submit to regular testing and wearing masks.
The Kentucky-based district court judge concluded that those opposing the order are likely to succeed in their argument that the Biden administration exceeded its authority over the federal procurement of goods and services when it issued the executive order. Although the court recognized Congress had delegated its procurement authority to the President to promote economy and efficiency in federal contracting, he wrote, “this power has its limits.”
He also agreed that “the connection between vaccination and efficiency in federal procurement was too attenuated, even though the administration argued that vaccination reduces labor costs and absenteeism, minimizes supply shortages, and improves workplace efficiency, concluding that the President exceeded his ‘whim under the guise of economy’ when he imposed an inflexible vaccination mandate,” explains attorney Laura Lawless of the law firm of Squire Patton Boggs.
Lengthy Battles Ahead
Because the judge chose to tailor the injunction in such a way that it only applies to the states that brought the lawsuit, “the net result is even more employer headaches; if operating a multistate operation, the executive order may be in effect in some locations but enjoined in others,” Lawless adds.
For the time being, only federal contractors in Kentucky, Ohio and Tennessee do not need to comply with the executive order’s upcoming deadlines—barring further appellate action—which very well may occur.
Wrestling over the OSHA ETS in the Sixth Circuit.
As we have reported, nationwide challenges to the OSHA ETS have been gathered into a single case being argued before the Sixth Circuit Court of Appeals. Although the vaccine standard continues to be subject to a preliminary injunction, the administration has sternly warned employers that they should continue observing requirements imposed on them even if the agency is prevented from pursuing enforcement actions at this time.
OSHA also announced that it has extended a period for gathering comments from stakeholders and the public to Jan. 19, 2022, although the ETS is not subject to the same steps federal agencies must take when developing and imposing formal regulations.
Judges in the Sixth Circuit have refused the administration’s request that they lift the preliminary injunction staying the ETS that had been issued in November by the Fifth Circuit Court of Appeals. If an ultimate decision is delayed long enough, the issue could become moot if the ETS six-month expiration date passes on June 8, 2022, while the injunction remains in place.
The parties involved have so far been jockeying for positions of advantage through filing of various motions. A number of parties have requested that the case be heard by the court’s full 20-member complement of judges who are currently active, instead of starting out with consideration by a three-judge panel, which is the normal procedure in a federal appeals court.
Those seeking this full court proceeding (called an “en banc review”) believe that it will help speed up the inevitable appeal of the court’s decision to the U.S. Supreme Court, which will be sought regardless of which way the Sixth Circuit rules.
States move forward in all directions.
State governments have continued to take actions promoting or opposing vaccine mandates in their own jurisdictions. Joining states like California, Connecticut, Massachusetts, New Jersey, New York, and Oregon, on Nov. 24 the state of Washington required that employees, on-site volunteers or on-site contractors be able to provide proof of vaccination if they work for state agencies and operators of any educational or healthcare setting, including healthcare providers.
Meanwhile, other states like Florida, Texas and Mississippi continue to battle the mandates and have passed laws and issued directives banning private employers from requiring employers to be vaccinated, even where courts have said it is legal for them to do so. Other state legislatures also are mulling legislation banning such mandates.