Labor & Employment Developments Blog

Hardly a day goes by without some update on the status of the various federal vaccine mandates. As of today, the OSHA ETS, the CMS Rule and the Federal Contractor Rule are all stayed nationwide.

1.  OSHA Emergency Temporary Standard (ETS)

The U.S. Court of Appeals for the Fifth Circuit enjoined enforcement and implementation of the ETS on November 12, 2021. Shortly after, OSHA issued the following statement: “While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” The various challenges to the ETS have been consolidated and assigned to the Sixth Circuit.  The Fifth Circuit stay remains in effect.

Status:  Stayed nationwide

2.  Centers for Medicare & Medicaid (CMS) Rule

On November 29, 2021, a federal district court in Missouri granted a preliminary injunction, blocking the CMS rule. The order enjoins implementation and enforcement of the mandate in the following states:  Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming pending resolution of the legal challenges.  On November 30, 2021, a federal district court in Louisiana issued a separate injunction staying implementation and enforcement nationwide, except for the 10 states already subject to the November 29 order.

Status:  Stayed nationwide

3.  Federal Contractor Rule

On November 30, 2021, a federal district court in Kentucky issued a preliminary injunction blocking the implementation of the federal contractor mandate. The injunction as issued covers Kentucky, Ohio and Tennessee.  On December 7, 2021, the U.S. District Court for the Southern District of Georgia issued a nationwide injunction blocking the enforcement of the federal contractor mandate.

Status:  Stayed nationwide

4.  Federal Employee Mandate

On November 24, 2021, the White House issued a status update on the Federal Employee Mandate, which had an original deadline of November 22, 2021. The update states that:

This week’s deadline wasn’t an end point. For those employees who are not yet in compliance, agencies are beginning a period of education and counseling, followed by additional enforcement steps, consistent with guidance from the Safer Federal Workforce Task Force and the Office of Personnel Management. At any point, if an employee gets their first shot or submits an exception request, agencies will pause further enforcement to give the employee a reasonable amount of time to become fully vaccinated or to process the exception request. This next stage of the process will not result in disruptions to Government services and operations and will result in more employees becoming vaccinated.

An email sent on November 29 to the President’s Management Council members by the Office of Management and Budget’s deputy director and the Office of Personnel Management’s director was quoted in the press as stating:

Given that tremendous progress, we encourage your agencies to continue with robust education and counseling efforts through this holiday season as the first step in an enforcement process, with no subsequent enforcement actions, beyond that education and counseling and, if warranted, a letter of reprimand, for most employees who have not yet complied with the vaccination requirement until the new calendar year begins in January . . . .

 Status:  Enforcement delayed until January 2022