Vaccine and testing mandates in the courts

The implementation and enforcement of OSHA's Emergency Temporary Standard (ETS) and the Centers for Medicare and Medicaid Services (CMS) Interim Final Rule have been paused by judicial action nationwide.

The OSHA ETS was halted by a nationwide stay issued on Nov. 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. The Sixth Circuit has yet to take action in the case. In the meantime, OSHA has filed a motion to lift the stay in the Fifth Circuit, with the parties to submit their written legal arguments to the court by Dec. 10, 2021. The merits of the case and the ultimate fate of the ETS will be decided separately at a later date.

On Nov. 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 federal government has filed a notice of appeal. Separately, on Nov. 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.

Finally, a preliminary injunction of executive order 14042 requiring covered federal contractor employees to be vaccinated against COVID-19 was issued by a U.S. District Judge in Kentucky on Nov. 30, 2021, but limited to the states of Kentucky, Ohio, and Tennessee. This is not applicable nationwide. There are similar lawsuits filed by 16 other states around the country, so expect more rulings to be entered in the coming weeks.