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Labor and Employment Update — Healthcare (CMS) and Large Employer (OSHA) Vaccine Mandates Back in Play in PA – Federal Contractor Mandate Still on Hold

access_time Posted on: December 18th, 2021
Following the vaccine mandates over the past several weeks has seemed more like calling play-by-play than monitoring legal developments – and so we again find ourselves sorting through multiple changes of possession and challenges.   To bring everyone up to date, the current state of play is as follows:  

Healthcare (CMS) Mandate 
Initially blocked in 10 states by a Missouri federal judge on November 29, 2021, then blocked nationwide by a Louisiana judge on November 30, 2021.  

UPDATE: A Fifth Circuit ruling on December 15, 2021, upheld the Louisiana court’s injunction – but only as to the 14 plaintiff states (Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio) involved in that case. These 14 states joined the 10 states (Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming) for which a Missouri court had issued an injunction in November, which was upheld by the Eighth Circuit on December 14, 2021.  In a separate action, a Texas federal court on December 15, 2021, blocked the mandate in Texas. The Fifth and Eighth Circuit injunctions have been appealed to the U.S. Supreme Court, which has ordered the challengers to respond to the federal government’s application to stay the district courts’ injunctions by December 30, 2021, at 4:00 PM.   As of now, that means the CMS healthcare mandate is back in action for covered employers in California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin. CMS has not yet confirmed whether it plans to move forward, but employers in the above states – which of course includes Pennsylvania – should be watching closely and prepared to react accordingly.   

Large Employer (OSHA) Mandate
Previously blocked nationally by the Fifth Circuit on November 12, 2021 – multiple challenges were combined and moved to the Sixth Circuit as of November 16, 2021. In addition, the Senate voted December 8, 2021, to block the mandate – a move that is largely symbolic given the long odds of passage in the House, and near certainty of veto by the President.  

UPDATE: On December 17, 2021, the Sixth Circuit dissolved the stay – meaning the OSHA ETS applicable to large employers is back in play in all states. Of course, this tees up the OSHA mandate for an appeal to the U.S. Supreme Court, as occurred with the CMS healthcare mandate.   In the meantime, OSHA issued a statement that in order “to provide employers with sufficient time to come into compliance, OSHA will not issue citations for non-compliance 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.”    

Federal Contractor Mandate Remains on hold nationally based on a ruling by a Georgia federal judge on December 7, 2021 – which remained in place following review by the Eleventh Circuit on December 17, 2021, and another issued by a federal judge in Kentucky in November – both of which were joined by a third ruling issued by a federal judge in Louisiana on December 16, 2021, blocking the mandate for state (but not private) employers in Louisiana, Mississippi, and Indiana.  
These head-spinning developments continue to complicate employers’ good-faith efforts to prepare for and remain in compliance. We will continue to provide you with updated reporting and analysis as these cases play out.   

In the meantime, we advise employers to take all appropriate measures to ensure worker safety – particularly as the surge in new COVID cases continues, and area hospitals report in-patient numbers at or near peak-pandemic levels.   Stay tuned for further updates, and please do not hesitate to reach out with any specific questions or concerns.  

Christine Nentwig cnentwig@cgalaw.com (717) 718-3956.