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The saga continues.  In prior alerts, we have been providing updates and analysis regarding continuing practical and legal challenges to implementing the President’s Path Out of the Pandemic plan, and in particular, the Executive Order 14042 (“EO 14042”) mandating that government contractors’ employees must be vaccinated unless one of the two legal exceptions – sincerely held religious belief or medical disability – is found by the government contractor to apply. Challenges to EO 14042 have been raised quickly by many, and in myriad forums.  Among the challenges are lawsuits filed by 26 States, as well as educational institutions, public and private entities that assert that they are covered federal contractors (or have filed parens patriae suits on behalf of covered federal contractors in their citizenry) subject to EO 14042. A number of these suits seek to enjoin enforcement of EO 14042. As a result, there is currently a nationwide injunction in place, staying implementation of the government contractor vaccination mandate under EO 14042 across government contracts and contract-like agreements being performed in the U.S. and outlying areas (the vaccination mandate does not apply to the performance of government contracts and agreements outside these areas). While this nationwide stay is in place, covered federal contractors are nonetheless left in limbo as the Administration has appealed many of the current rulings and the legal challenges continue. Below is an update of the current status of the various lawsuits challenging EO 14042:

Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, West Virginia v. Biden et al. (S.D. Georgia) – 12/7/21 Nationwide Preliminary Injunction

On December 7, 2021, the District Court granted the plaintiff States’ motion for a preliminary injunction, and the Court entered a nationwide preliminary injunction on December 7, 2021, which had the effect of staying implementation of EO 14042. The Administration appealed this ruling. Briefing in the appeal is set to be completed on January 24, 2022. The Administration requested that the District Court’s injunction be stayed pending the appeal. If granted, this stay would have renewed enforcement of EO 14042; however, the Court denied the Administration’s request to stay the preliminary injunction. Separately, the Administration requested that the District Court clarify its Order, and the Court has allowed briefing on the issue, which will be completed on January 14, 2022.

Commonwealth of Kentucky, Ohio, Tennessee v. Biden et al. (E.D. Kentucky) – 11/30/21 Limited Preliminary Injunction

On November 30, 2021, a U.S. District Judge in Kentucky granted a preliminary injunction enjoining the federal government from enforcing a vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee. The Administration filed a notice of appeal for this ruling, and the parties jointly requested a stay in the district court on December 20, 2021 pending the current appeal. On January 5, 2022, the Sixth Circuit denied the Administration’s requested stay, noting that the Administration did not establish that it would suffer irreparable harm as it delayed issuance and implementation of the vaccination mandate itself and there is a national stay already in place through the Georgia District Court proceeding.  Briefing for the appeal is currently scheduled to be completed on March 23, 2022.

Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, Wyoming. v. Biden et al. (E.D. Missouri) – 12/20/21 Limited Preliminary Injunction

On December 20, 2021, the District Court entered an Order enjoining the Defendants from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming. A scheduling conference is set for January 7, 2022, and the Administration has not filed a notice of appeal in this case.

Florida v. Nelson et al. (M.D. Florida) – 12/30/21 Limited Preliminary Injunction

On December 22, 2021, the District Court entered an Order finding that Florida demonstrated a substantial likelihood that EO 14042 exceeded the President’s authority under the Federal Property and Administrative Services Act (FPASA), and therefore did not need to reach whether EO 14042 exceeded constitutional or other legal and rulemaking authority to determine whether there was substantial likelihood of success on these grounds as well at this stage of the proceedings. The Court took the remainder of Florida’s motion for preliminary injunction under advisement, and the Court gave the parties until December 29, 2021 to propose a preliminary injunction consistent with the Court’s Order. Following receipt of the parties’ proposed orders, the Court entered a preliminary injunction on December 30, 2021.

Louisiana, Indiana, Mississippi v. Biden et al. (W.D. Louisiana) – 12/16/21 Limited Preliminary Injunction

On December 16, 2021 the District Court granted the plaintiffs’ motion for preliminary injunction. The Court’s Order enjoins the federal government from “enforcing the Task Force Guidance and FAR Memo in any contract, grant, or any other like agreement by any other name, whether for services or product and whether existing or new, between the Plaintiff States or their agencies and the national government.” The Administration has not filed a notice of appeal in this case.

Texas v. Biden (S.D. Texas)

In this case, the State of Texas filed suit seeking to enjoin enforcement of EO 14042’s government contractor vaccination mandate. While the State has sought injunctive relief, the case has been stayed following a status conference with the court. No Order was entered on the plaintiffs’ motion for TRO/preliminary injunction prior to the stay.

Arizona v. Biden (D. Arizona)

Briefing is ongoing with respect to the plaintiffs’ motion for injunctive relief in this case.

Next Steps

These suits bring a variety of claims, generally alleging EO 14042 exceeds Presidential and statutory authority and violates various constitutional provisions. So far, several district courts have held that the challenging States have a likelihood of success on the merits sufficient to warrant preliminary injunctive relief. However, the Administration has appealed certain of these rulings, and even if the challenging States succeed on appeal, the cases will go forward in the trial courts on the merits in order to determine if a permanent injunction and stay is warranted. Some federal contractors and subcontractors have already been required to accept the clause implementing EO 14042 for current and new contracts – the clause’s application has been stayed and so these provisions remain in the agreements but not enforced at this juncture.  Other contractors have not accepted the clause.  For them there is a pending, unanswered question as to whether they may be covered by the Path Out of the Pandemic Plan, the vaccinate or mask mandate Occupational Health and Safety Act Emergency Temporary Standard (OSHA ETS), since they are not covered by the EO 14042 mandate.  For many contractors and subcontractors that work at government facilities or sites, their employees may be subject to the vaccination or mask mandates for being admitted to these places. Contractors would be wise to have a plan in place for implementation of the requirements of EO 14042 should the current landscape change.

Separately, the interlocutory appeals of two other mandates under the OSHA ETS vaccinate or mask mandate applicable to companies in the U.S. employing 100 or more employees, which has taken effect, and the Centers for Medicare and Medicaid (CMS) interim final rule regarding vaccination are set to be argued at the Supreme Court on January 7th.  It is unlikely that the Supreme Court decision(s), in either case, will be issued quickly or result in clear guidance on the government contractor mandate.  However, they may shed light on the likelihood of success as the EO 14042 cases wind their way through the legal process. While these suits involve different statutory authority and constitutional questions, any reasoning offered by the Supreme Court may be instructive in evaluating the pending challenges to EO 14042 going forward. We will continue to monitor these developments. In the meantime, if you have questions regarding these ongoing developments, please contact Susan Warshaw Ebner, Luke VanFleteren, Eric Whytsell or the Stinson LLP contact with whom you regularly work.

In the latest round of litigation on the rules being rolled out to implement the Biden Administration’s Path Out of the Pandemic, the Supreme Court signed orders yesterday to hold oral argument on January 7th, 2022 on the Sixth Circuit’s decision to dissolve the Fifth Circuit’s national stay of the Occupational Safety and Health Administration (OSHA) emergency  rule mandating that companies with 100 or more employees must vaccinate or test employees for COVID.  As Stinson reported last week, the Sixth Circuit, which is handling the consolidated complex litigation of OSHA’s authority to issue that emergency rule, issued a split decision to dissolve the national stay of the rule pending resolution of the litigation challenges to the rule and OSHA’s authority.  While the majority of two found that the rule was within OSHA’s reasonable exercise of its emergency authority, the dissent filed by the remaining judge took strong exception to the standard and decision to lift the stay, stating that “a multitude of petitioners—individuals, businesses, labor unions, and state governments—have levied serious, and varied, charges against the mandate’s legality. They say, for example, that the mandate violates the nondelegation doctrine, the Commerce Clause, and substantive due process; some say that it violates their constitutionally protected religious liberties and the Religious Freedom Restoration Act of 1993. To lift the stay entirely, we would have to conclude that not one of these challenges is likely to succeed. A tall task. To keep the stay, however, there is no need to resolve each of these questions; the stay should remain if we conclude that petitioners are likely to succeed on just one ground. In my view, the petitioners have cleared this much lower bar on even the narrowest ground presented here: The Secretary of Labor lacks statutory authority to issue the mandate.”

Pending the Supreme Court’s hearing on the Sixth Circuit’s decision, OSHA has extended the date for enforcement of the emergency rule:

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.  OSHA will work closely with the regulated community to provide compliance assistance.”

Government contractors need to consider what to do pending the litigation of this OSHA rule and the Executive Order 14042 (the “EO”) government contractor vaccination rule.  The current national stay decision and other decisions in other Circuit Courts of Appeal staying implementation of the EO vaccination rules indicate that the Administration’s attempts to insert the clause into Government-funded agreements was indeed very broad.  Whether the clauses inserted were expressly required under the EO or the agencies’ extensions of the EO were beyond its scope, and whether contractors and grant holders voluntarily agreed or were forced to accept the clause as a condition, contractors are left in a position where the clause has not been removed from their contracts, and the Government may still be attempting to insert these clauses into procurements, contracts, and grants, pending its efforts to overturn the stay or prevail on a decision on the merits of the litigation.

The Safer Workforce Task Force Guidance has been revised to state that the Government will not “enforce” the rule in states covered by the stay:

For existing contracts or contract-like instruments (hereinafter “contracts”) that contain a clause implementing requirements of Executive Order 14042: The Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order (hereinafter, “Excluded State or Outlying Area”). In all other circumstances, the Government will enforce the clause, except for contractor employees who perform substantial work on or in connection with a covered contract in an Excluded State or Outlying Area, or in a covered contractor workplace located in an Excluded State or Outlying Area.

Contractors that have not accepted the EO clause may not be considered subject to the EO scheme at the present time.  Will OSHA consider them covered by their emergency rule if they meet the applicable employee standard?  And for contractors that do have the clause, do they continue to pursue implementation of a “vaccination unless there is a legal exception” policy in light of the stay and OSHA litigation, which currently calls for a “vaccination or test” policy?  This effort at rulemaking has been costly in many ways, beyond just time and money. Employers have contractual requirements to perform and employees are making decisions with their feet.  Contractors at all tiers need answers.

Stay tuned.  We continue to follow developments in this area.

Executive Order 14042 (the “EO”) and the implementing FAR clause and Safer Workforce Task Force (SWTF) Guidance – which mandate that government contractors and their subcontractors be vaccinated absent a legal exception – has been challenged by 26 states, as well as other entities.  Many of these suits allege that the President’s actions exceeded his authority under the U.S. Constitution and as delegated by Congress through legislation. Certain suits also challenge the rulemaking to implement the EO, and raise federalism and states’ rights concerns. Previously, we reported on the preliminary injunction issued by Judge Van Tatenhoven of the District Court for the Eastern District of Kentucky, enjoining the enforcement of the EO for federal contracts and contract-like agreements involving performance in the States of Kentucky, Ohio, and Tennessee.  We also reported on the nationwide injunction issued by Judge Baker of the District Court for the Southern District of Georgia, similarly enjoining enforcement of the EO but expanding it to cover federal contracts and contract-like agreements “in any state or territory of the United States of America.”

In the latest decision issued in this trail of State-led challenges, Judge Drell of the District Court of the Western District of Louisiana, issued a preliminary injunction over implementation of the EO for the States of Louisiana, Mississippi, and Indiana with regard to “contracts, grants, or any other like agreement by any other name between the Plaintiff States and the national government.”  The Court declined to extend the stay to private contractors since there was “not a single plaintiff representative of private contractors,” nor evidence of the EO’s effect on private contractors presented in that case, and there was a national injunction already in place for private contractors under the Georgia v. Biden case.

The Louisiana Court found that the identified States had standing to bring suit based on their contracts and the “Hobson’s choice” they faced in addressing the Government’s “strong-arming tactics” of accepting the clause or risking the loss of current and future contracts given their lack of bargaining power. The Louisiana Court discussed, but did not reach the question of whether the States had parens patriae standing to bring suit on behalf of its citizenry although the Court seemed to be sympathetic to finding such standing. Instead, the Court based its finding of standing on the fact that the States had established a case or controversy in regard to conflict between the EO and implementing actions and the Tenth Amendment of the U.S. Constitution.

In issuing the preliminary injunction here, the Louisiana Court noted that there were “bizarre coverage differences” between the EO and the FAR memorandum implementing it. The Court pointed out that the EO does not apply to existing or current contracts, or grants, contracts with Indian Tribes, contracts at or below $250,000, contracts for work performed outside the U.S., or contracts for products. In contrast, the Court found that the FAR memorandum implementing the EO expressly seeks to expand the scope by applying the requirements more broadly.  While contracts with Indian Tribes and those performed outside the U.S. are expressly excluded under the FAR memorandum, the Court pointed out that grants were not excluded.

While the author of this blog notes that FAR provisions do not normally apply to grants unless expressly incorporated into the grant or grant rules applicable to the grant, the Court’s finding does not appear to be based solely on the fact that the FAR memorandum does not exclude grants.  Rather, it appears to rely on the facts brought forth in live testimony during the hearing that the National Institute of Health contacted the University of Louisiana and requested that the University comply with the SWTF Guidance through the inclusion of a deviation clause into an existing grant.  The testimony reported that the University was left with no choice but to accept the deviation clause without bargaining, or risk loss of its grant. Personnel employed by the University also presented testimony that the University denied their assertion of a religious exception because there was “uncertainty as to whether any accommodation for a religious exemption is sufficient to comply” with the SWTF Guidance and that the personnel would be fired unless they obtained fully vaccinated status by January 18, 2022.

In examining whether the Federal Property and Administrative Services Act (FPASA) provided legislative authority for the EO’s required government contractor vaccine mandate, the Court stated that there would need to be a “close nexus” between the FPASA and the EO.   However, the Court determined that the primary purpose of the EO, to motivate public health policy first and foremost to increase vaccinations, was not aligned with FPASA policy, which is to promote economy and efficiency, encompassing factors like “price, quality, suitability, and availability of goods or services that are involved in all acquisition decisions.”  Further, the Court found that the public health policy purpose of the EO conflicts with the Tenth Amendment of the U.S. Constitution, which entrusts the protection of the “safety and the health of the people,” a noneconomic activity, principally to the States.

With regard to challenges that the States’ brought against the rulemaking under the EO, the Court determined that, two years into the pandemic, the circumstances did not satisfy the urgent and compelling circumstances test so as to justify waiver of the relatively short required notice and comment period for rulemaking. Notably, the Court stated that the Office of Management and Budget’s (OMB’s) actions to calendar a comment period on the OMB determination was a “manipulation” of the letter of the law and the revised OMB determination to adopt the then updated SWTF Guidance and move the date for full vaccination of government contractors to January 18, 2022 did not “pacify” complaints that the arbitrary effective date was inconsistent with the Administrative Procedure Act.

Cases in other jurisdictions are also winding their way through the judicial process.

In the interim, the revised SWTF Guidance still provides that “The Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order . . . . In all other circumstances, the Government will enforce the clause, except for contractor employees who perform substantial work on or in connection with a covered contract in an Excluded State or Outlying Area, or in a covered contractor workplace located in an Excluded State or Outlying Area. . . . Note: Federal agency COVID-19 workplace safety protocols for Federal buildings and Federally controlled facilities still apply in all locations.”  The Government clearly is still hoping to overturn or dial back the nationwide stay. Contractors with contracts that task them to perform work at government facilities still need to comply with agency requirements.  And  those that have contracts with the clause and perform within and outside the United States and its outlying areas may have questions about the impact of this enforcement “stay” on their contracts in light of this ambiguous language. Contractors in these circumstances may want to check with their contracting officer to confirm the scope of their requirements.

Stay tuned for further developments.

Breaking news – Following an expedited briefing schedule and hearing, the United States District Court for the Southern District of Georgia, in Georgia v. Biden, No. 21-cv-00163, has issued a nationwide preliminary injunction staying implementation of the government contractor vaccination mandate under Executive Order (EO) 14042. The Court determined that the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia, and the Associated Builders and Contractors, Inc. had standing to bring suit against the vaccination mandate. In its decision the Court held:

even in times of crisis this Court must preserve the rule of law and ensure that all branches of government act within the bounds of their constitutionally granted authorities. Indeed, the United States Supreme Court has recognized that, while the public indisputably “has a strong interest in combating the spread of [COVID-19],” that interest does not permit the government to “act unlawfully even in pursuit of desirable ends.” Ala. Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2490 (2021) (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582, 585–86 (1952)). In this case, Plaintiffs will likely succeed in their claim that the President exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act when issuing Executive Order 14042.

Finding that the President exceeded his authority granted under the Federal Property and Administrative Services Act (FPASA), the Court declined to address the other potentially viable grounds alleged by Plaintiffs to support the grant of a preliminary injunction, including (1) the Safer Workforce Task Force Guidance and FAR Deviation Clause were issued without complying with the Administrative Procedure Act’s notice and comment requirements and (2) if the FPASA does authorize EO 14042, then both are unconstitutional under the non-delegation doctrine and because they exceed Congress’s authority and intrude on state sovereignty.

This national ruling follows on the heels of last Friday’s preliminary injunction granted on similar grounds by the United States District Court for the Eastern District of Kentucky that was limited to the States of Kentucky, Tennessee and Ohio.

The impact of this ruling cannot be understated as many government contractors are working to persuade their employees to commence vaccination in order to be fully vaccinated by January 18, 2022. Moreover, as the Court noted, the administrative processes required of Plaintiffs to comply with the requirements of the vaccination mandate are “incredibly time-consuming processes… complying with a regulation later held invalid almost always produces the irreparable harm of nonrecoverable compliance.” It further found that:

In contrast, declining to issue a preliminary injunction would force Plaintiffs to comply with the mandate, requiring them to make decisions which would significantly alter their ability to perform federal contract work which is critical to their operations. Indeed, it appears that not granting an injunction could imperil the financial viability of many of ABC’s members. Additionally, requiring compliance with EO 14042 would likely be life altering for many of Plaintiffs’ employees as Plaintiffs would be required to decide whether an employee who refuses to be vaccinated can, in practicality, be reassigned to another office or another task or whether the employee instead must be terminated. “[A]ny abstract ‘harm’ a stay might cause . . . pales in comparison and importance to the harms the absence of a stay threatens to cause countless individuals and companies.”  (Citations omitted).

We will further analyze the impacts and follow up actions of the Administration in light of these rulings.  Stay tuned.

As anticipated in our prior alerts, there have been continuing practical and legal challenges to implementing the Path Out of the Pandemic plan. This alert provides an update on the current status of challenges to OSHA’s Emergency Temporary Standard (ETS), Executive Order 14042 for federal contractors, and the Centers for Medicare and Medicaid Services (CMS) Interim Final Rule. At this time, the implementation and enforcement of these actions have all been paused by judicial action either nationwide or in certain states, as follows:

  • OSHA – Nationwide Stay: The OSHA ETS was halted by a nationwide stay issued on November 12, 2021 by the Fifth Circuit Court of Appeals. OSHA subsequently suspended its implementation and enforcement of the ETS pending further action by the Sixth Circuit where the consolidated case now sits.
  • Federal Contractor Guidelines – Stay in Three States: Executive Order 14042, mandating covered federal contractors to require employee vaccinations was also enjoined from enforcement on November 30, 2021 by a federal judge in Kentucky, impacting those employers in three states: Kentucky, Ohio and Tennessee. Other challenges to the executive order and implementing federal contractor guidelines remain pending.
  • Healthcare Rule – Nationwide Stay: The CMS Interim Final Rule, requiring COVID-19 vaccinations for all staff at Medicare and Medicaid certified facilities, was enjoined on November 29, 2021, by a federal judge in Missouri, staying implementation and enforcement of the CMS vaccine rule in 10 states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. Thereafter, the CMS vaccination rule was stayed for the remainder of the United States on November 30, 2021, by a federal judge in Louisiana.

Nationwide Stay of OSHA’s ETS

In a previous alert, we detailed the requirements of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS), which is broadly applicable to employers with 100 or more employees. This ETS requires covered employers to develop, implement and enforce a mandatory COVID-19 vaccination policy, or a policy requiring employees to either get vaccinated or undergo regular COVID-19 testing and wear a face covering. Challenges to the ETS were filed in appellate courts across the county immediately after the ETS was published.

Fifth Circuit Stays Implementation and Enforcement

Federal law governs these challenges and allows for judicial review in the U.S. Court of Appeals. While multiple Petitions for Review were pending, the U.S. Court of Appeals for the Fifth Circuit, which has jurisdiction in Louisiana, Mississippi and Texas, issued a stay of the ETS on November 6, 2021. This stay was not explicitly limited to the Fifth Circuit. The Court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” The Fifth Circuit later rejected the government’s request to withdraw the stay pending consolidation of the various Petitions for Review.

On November 13, 2021, OSHA issued a statement indicating it would not enforce the ETS until further court orders, essentially conceding that the stay was of nationwide applicability. OSHA stated: “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. Note that the comment period is separate from the litigation.”

On November 16, 2021, the Petitions for Review pending in various courts of appeal were consolidated at the U.S. Court of Appeals for the Sixth Circuit. While all the Petitions for Review will be heard by the Sixth Circuit, the stay of the ETS previously issued by the Fifth Circuit currently remains in effect.

Status of Proceedings Consolidated in Sixth Circuit

Since consolidation, a number of filings have been made regarding the Petitions for Review; however, the Sixth Circuit has not yet issued any substantive opinions. There are three key pending actions:

  • Petitions for the initial decision to be heard en banc: Multiple petitioners filed petitions for en banc review, which request that all active status judges on the Sixth Circuit, not just a three judge panel, hear the consolidated Petitions for Review. At this time, the Sixth Circuit skews in favor of Republican appointees, with the current composition (including senior-status judges who are in the running to be selected for a panel) of the Circuit is 20 Republican appointees – eight Democratic appointees. If the Sixth Circuit permits en banc review, only active-status judges would sit, and the breakdown by appointment for the full Circuit is 11 Republican appointees – five Democratic appointees. However, Judge Helene White was nominated by the Clinton administration, never got a vote, and was re-nominated by George W. Bush, making the likely partisan breakdown 10-6.
  • OSHA’s Motion to Dissolve the Stay: On November 23, 2021, OSHA filed an emergency motion to lift the stay entered by the Fifth Circuit. The Court issued a briefing schedule, which requires briefing to be completed on the motion to lift the stay on December 10, 2021. This is notable, as that date is after the first major compliance deadline in the OSHA standard, December 5, 2021. OSHA requested an expedited briefing schedule, but the Court has not taken any action to date.
  • Merits: Ultimately, the parties will also brief the case on the merits to determine whether OSHA met its burden of determining that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards and that a standard is necessary to protect employees from such danger. This briefing will not occur until after the stay motions are decided, and a separate briefing schedule will be issued.

We are continuing to follow the complex litigation and assist clients with determining how to proceed while the Stay is in effect, as OSHA’s Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace guidance remains in place, as does OSHA’s National Emphasis Program.

In parallel, the ETS was published as an Interim Final Rule with a comment period. This would allow OSHA to satisfy the public participation requirements for development of a permanent standard, which could be issued notwithstanding the ETS litigation. On November 30, 2021, OSHA extended the comment period for the standard. Comments are now due January 19, 2022. OSHA specifically solicited comments regarding whether the ETS should be made a permanent standard; whether small employers (less than 100 employees) have administrative capacity to implement a vaccine mandate; what “significant risks” should be addressed in any permanent standard (face coverings, as example); and whether prior COVID infection should be considered as part of the standard. If you would like to provide comments on a potential permanent standard, contact our attorneys listed below.

Limited Federal Contractor Stay

Our previous alerts described Executive Order 14042, which requires covered contractor employees to be vaccinated against COVID-19. On November 30, 2021, a U.S. District Judge in Kentucky granted a preliminary injunction enjoining the federal government from enforcing a vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee. Unlike the ETS and CMS decisions, the stay is not applicable nationwide.

In the decision, the Court determined that the states of Kentucky, Ohio and Tennessee had standing to challenge the vaccine mandate, reasoning that “contractors who do not comply will likely be blacklisted from future contracting opportunities if they refuse to comply.”  On the merits, the Court determined a preliminary injunction was warranted on the ground that the president’s authority is not absolute and must be grounded in the constitution or statute. The Court determined that the president exceeded his statutory authority in promulgating Executive Order 14042 and delegating authority to manage implementation of mandatory vaccination—a public health measure—using the Federal Property and Administrative Services Act’ (FPASA) statutory authority to create an economical and efficient system for federal government procurement and supply. The Court noted several concerns with this overreach based on FPASA: (1) infringement of the Competition in Contracting Act’s full and open competition requirements; (2) violation of the constitutional nondelegation doctrine to exercise statutory authority the president has not been granted by Congress; and (3) federalism and the Tenth Amendment’s principles that powers not delegated to the U.S. by the Constitution nor prohibited by it to the states are reserved to the states and do not confer on the president general police powers that are also reserved to the states.

Notably the court declined to issue a national preliminary injunction, but instead issued a preliminary injunction to address contracts and subcontracts in Kentucky, Ohio and Tennessee, as well as sheriff plaintiffs, noting that “the proper scope of injunctions is ongoing, [and] this court believes that redressability in the present case is properly limited to the parties before the court.”

This Kentucky case is not the only challenge to the federal contractor vaccine mandate’s viability. In addition to the suit discussed above, there are lawsuits challenging the vaccine mandate and subsequent guidance filed by 16 other states. These lawsuits are in various stages and challenge the implementation of the executive order as violating constitutional and statutory authorities and rights, as well as administrative rights and procedures. The suits also seek injunctive relief, and we anticipate rulings will be entered in one or more of those cases in the coming weeks based on the briefing schedules.

Nationwide CMS Injunction

In a prior alert, we detailed the Interim Final Rule issued by the Centers for Medicare & Medicaid Services (CMS). On November 29, 2021, a U.S. District Judge in Missouri entered an order preliminarily enjoining the government from enforcing the Interim Final Rule against any and all Medicare and Medicaid certified providers and suppliers within the states of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. The Court reasoned that Congress did not grant CMS authority to mandate the vaccine, CMS bypassed notice and comment requirements, and the mandate is arbitrary and capricious. The government has filed a notice of appeal.

On November 30, 2021, a U.S. District Judge in Louisiana entered an order granting a preliminary injunction which enjoins the federal government from implementing the CMS mandate nationwide, excluding those 10 states already covered by the Missouri order. The Court relied on reasoning from the Fifth Circuit’s stay of the OSHA ETS in conducting its analysis and further found that the CMS rule improperly bypassed notice and comment requirements, exceeded the government defendants’ authority, was contrary to established law, was arbitrary and capricious, and implicated additional constitutional concerns. It is likely that appeals of these cases will further muddy the waters regarding the ultimate determination of the viability of the Interim Final Rule. However, enforcement of the rule is currently stayed in all 50 states.

Takeaways

The ultimate viability of these federal vaccine requirements will continue to undergo judicial scrutiny and additional appeals are all but certain, meaning clarity on the issues may not occur anytime soon. In the meantime, if you have questions regarding these ongoing developments, please contact Brittany Barrientos, Amy Conway, Susan Warshaw Ebner, Alisa Ehrlich, Molly Keppler, Pat Konopka, Erin Naeger, Sharon Ng, Kristin Parker, Greta Reyes, Bernadette Sargeant, Stephanie Scheck, Ben Woodard, Eric Whytsell or the Stinson LLP contact with whom you regularly work.

Luke VanFleteren, who also assisted in drafting this article, is a law clerk at the firm.