Executive Orders and Federal Rulemaking

In addition to challenges to individual employer-imposed mandates, a wave of lawsuits have sought to invalidate Biden Administration efforts to increase the nation’s vaccination rate. These include President Biden’s executive orders for federal contractors (EO 14042) and U.S. government employees (EO 14043), Department of Defense (DOD) vaccine mandates for military and civilian employees, the Occupational Safety and Health Administration’s Emergency Temporary Standard (OSHA ETS) “vaccine or test” rule for employers with at least 100 employees or more, the Centers for Medicare and Medicaid Services (CMS) mandate for covered providers who participate in the Medicare and Medicaid programs and others covered by the CMS mandate, and a mandate for federally funded Head Start programs.

With few exceptions, courts have been unwilling to enjoin private employers’ vaccination requirements. In contrast, courts have been far more inclined to bar enforcement of government-issued mandates, at least while the ongoing legal challenges are pending. The DOD vaccination requirements are on hold pursuant to an injunction issued by the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit also suspended enforcement of the OSHA ETS, but the Sixth Circuit dissolved the stay. The U.S. Supreme Court reversed the Sixth Circuit’s decision and granted a temporary stay. The Biden Administration has since withdrawn the OSHA ETS.

However, the Supreme Court overturned the Fifth Circuit’s decision to stay the interim CMS vaccine mandate pending deliberations on the merits of the legal challenge, allowing the CMS rule to take effect in the 24 states where enforcement had been enjoined. (Challenges to the CMS mandate are pending in the Eighth and Eleventh Circuits as well.)

Meanwhile, a Georgia federal district court has issued a preliminary nationwide injunction halting enforcement of EO 14042, and the U.S. Court of Appeals for the Eleventh Circuit has denied the federal government’s motion to stay a preliminary injunction pending appeal. Federal courts also have enjoined enforcement of a federal vaccination mandate for Head Start teachers and blocked a vaccine mandate for federal workers.

State and Local Mandates

Many state and local governments also have enacted mandatory vaccination requirements. Some measures apply solely to government employees or specifically to healthcare industry employees (public and private). State and local governments have adopted vaccine mandates for their own employees and, acting as regulators, have implemented vaccination requirements for healthcare workers (both public and private), for students, faculty and staff of universities and K-12 schools, and for patrons of restaurants, gyms, and other public establishments. As with federal government mandates, vaccination requirements imposed by state and local governments likewise are facing a wave of legal challenges.

In one case, the U.S. Court of Appeals for the First Circuit affirmed a district court’s order denying a preliminary injunction to bar the State of Maine from enforcing its emergency vaccination requirement for healthcare workers on religious grounds. Also, the Second Circuit Court of Appeals has affirmed a district court’s decision to deny a preliminary injunction in a case challenging the New York City Department of Education’s COVID-19 vaccine mandate. The U.S. Supreme Court has denied review in both cases.

A number of states have passed laws curtailing employers and others from requiring COVID-19 vaccines or providing for a variety of exemptions that may limit the effectiveness of any mandate, including statutory protections from discharge based on vaccination status.