Requiring Coronavirus Disease 2019 Vaccination for Federal Employees
State of Oklahoma and Air National Guard Members v. Biden.
Ensuring Adequate COVID Safety Protocols for Federal Contractors
November 30, 2021 — Commonwealth of Kentucky v. Biden.
December 7, 2021 – Georgia v. Biden.
Occupational Safety and Health Administration (OSHA) (November 5, 2021)
OSHA issued an Emergency Temporary Standard (ETS) which imposed a vaccine mandate on employers with 100 or more employees.
Numerous legal challenges to the OSHA COVID-19 vaccine mandate regulations under the Administrative Procedure Act were filed in circuit courts across the country, and all challenges have been consolidated and transferred to the Sixth Circuit.
In BST Holdings, LLC v. Occupational Safety and Health Administration, Case No. 3:21-cv-03970 (Fifth Cir., Nov. 12, 2021) (Doughty, J., Memorandum Opinion), the court said the OSHA mandate raised “serious Constitutional concerns” based on the Commerce Clause and Separation of Powers. The Fifth Circuit enjoined the OSHA ETS.
The Sixth Circuit is now considering a request by the Biden Administration to lift the Fifth Circuit’s stay while it is considering the merits of the consolidated lawsuits against the OSHA ETS.
- Centers for Medicare and Medicaid Services (CMS) (November 5, 2021)
CMS issued an Interim Final Rule entitled: “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccinations,” which imposed a vaccine mandate on 21 types of Medicare and Medicaid healthcare providers who receive federal funding (86 Fed. Reg. 61555):
• Ambulatory Surgical Centers (ASCs) (§ 416.51)
• Hospices (§ 418.60)
• Psychiatric residential treatment facilities (PRTFs) (§ 441.151)
• Programs of All-Inclusive Care for the Elderly (PACE) (§ 460.74)
• Hospitals (acute care hospitals, psychiatric hospitals, hospital swing beds, long term care hospitals, children’s hospitals, transplant centers, cancer hospitals, and rehabilitation hospitals/inpatient rehabilitation facilities) (§ 482.42)
• Long Term Care (LTC) Facilities, including Skilled Nursing Facilities (SNFs) and Nursing Facilities (NFs), generally referred to as nursing homes (§ 483.80)
• Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs-IID) (§ 483.430)
• Home Health Agencies (HHAs) (§ 484.70)
• Comprehensive Outpatient Rehabilitation Facilities (CORFs) (§§ 485.58 and 485.70)
• Critical Access Hospitals (CAHs) (§ 485.640)
• Clinics, rehabilitation agencies, and public health agencies as providers of outpatient physical therapy and speech-language pathology services (§ 485.725)
• Community Mental Health Centers (CMHCs) (§ 485.904)
• Home Infusion Therapy (HIT) suppliers (§ 486.525)
• Rural Health Clinics (RHCs)/Federally Qualified Health Centers (FQHCs) (§ 491.8)
• End-Stage Renal Disease (ESRD) Facilities (§ 494.30)
Lawsuits were filed in three federal district courts in Florida, Louisiana, and Missouri.
- In the Florida case, the Eleventh Circuit denied preliminary injunctive relief, but the other two cases have been successful.
- On Monday, November 29, 2021, the federal district court in Missouri issued a preliminary injunction against the CMS mandate that covers the 10 plaintiff states in that case (Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire).
- On Tuesday, November 30, 2021, the federal district court in Louisiana issued a preliminary injunction which states that it “IMMEDIATELY ENJOINS and RESTRAINS” the implementation of the CMS Mandate in 40 states including Virginia (i.e., all states except for the 10 states previously enjoined by the Missouri Court). Specifically, the court stated: “the U.S. Department of Health and Human Services and the Center for Medicare and Medicaid Services, along with their directors, employees, Administrators and Secretaries are ENJOINED and RESTRAINED from implementing the CMS Mandate set forth in 86 Fed. Reg. 61555-01 (November 5, 2021) as to all healthcare providers, suppliers, owners, employees, and all others covered by said CMS Mandate.”