Vaccination Mandates: More Injunctions – And DOL Extends Notice and Comment Period on OSHA ETS

by Lana L. Rupprecht, Esq. - Director and Product Compliance Counsel

& Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,

December 01, 2021

 

As promised, we are continuing to monitor the developments on the vaccination mandate front. This continues to be a fluid and fast-paced situation. In fact, while we were drafting this blog, we had to revise twice to incorporate the new changes.

For background, our previous blogs on vaccination mandates can be found here, here, here and here.

Here is the current update as of right now.

Court Activity

CMS – IFR Temporarily Blocked Nationwide

  • What happened?
    • Quite a lot has happened and continues to happen!
    • First on Monday, November 29th, a federal district court in Missouri (Eastern District) granted a preliminary injunction against the government temporarily stopping enforcement of the Interim Final Rule("IFR") issued by the Centers for Medicare and Medicaid Services ("CMS") in the following 10 states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.
    • Then, on Tuesday, November 30th, another federal district court in Louisiana (Western District) granted a preliminary injunction brought by 14 additional states against the government restraining it from implementing the IFR.
      • The court applied this injunction nationwide except for the 10 states already subject to the November 29th Order from the Eastern District of Missouri. The court stated: "due to the nationwide scope of the CMS mandate, a nationwide injunction is necessary due to the need for uniformity."
  • What does this mean? This means that the CMS, according to this court order, is prohibited from enforcing its IFR – which includes mandatory vaccinations of covered health care workers against Medicare and Medicaid certified providers and suppliers nationwide. More to come on CMS's position in response.
  • What is the IFR? The IFR—Interim Final Rule—is a government mandate from CMS (defined above) requiring health care workers in hospitals, nursing homes and other health care facilities to get fully vaccinated by Jan. 4, 2022—subject to medical or religious exemptions. Our prior discussion about the IFR can be found here.
  • Where are the decisions?
    • The Eastern District of Missouri court decision issued on November 29th can be found here.
    • The Western District of Louisiana court decision issued on November 30th can be found here.
  • What should employers do?
    • Employers subject to the IFR should confer with counsel on next steps. These lower district court decisions will likely be appealed to a higher court, and probably ultimately, to the U.S. Supreme Court.
    • These decisions do not prohibit employers from implementing their own mandatory vaccination policy (subject to state law).

Federal Contractor Vaccine Mandate Blocked in 3 States

  • What happened? Also, on Tuesday, November 30th, a federal district court in Kentucky (Eastern District) granted a preliminary injunction against the government temporarily stopping enforcement of the vaccine mandate required for federal contractors and subcontractors in the states of Kentucky, Ohio and Tennessee.
  • What does this mean? This means that the government is temporarily prohibited from enforcing the vaccine mandate under Executive Order (EO) 14042 for federal contractors and subcontractors in all covered contracts in the states of Kentucky, Ohio and Tennessee.
  • What is EO 14042? EO 14042, issued on September 9, 2021, requires, among other things, that employees of certain federal contractors and subcontractors be vaccinated--subject to medical or religious exemptions. The vaccination deadline was originally December 8th but this was pushed back to January 18th. Our prior blogs describing the EO can be found here and here.
  • Where is the decision? The Eastern District of Kentucky court decision issued on November 30th can be found here.
  • What should employers do?
    • Employers subject to EO 14042 without covered contracts in the 3 states identified above are not likely subject to the court order but should check with counsel.
    • Employers subject to EO 14042 with covered contracts in the 3 states identified above, should confer with counsel on next steps.
    • Again, the court's decision does not prohibit employers from implementing their own mandatory vaccination policy (subject to state law).

OSHA ETS-Notice and Comment Period Extended

  • What happened?
    • On November 30th, the U.S. Department of Labor issued a News Release stating that the notice and comment period for OSHA ETS (the OSHA ETS is explained here, here, here and here) is extended from December 6, 2021 to January 19, 2022 so that "stakeholders may have additional time to review the ETS and collect information and data necessary for comment." This means that interested parties have more time to submit any written comments either supporting or opposing the OSHA ETS.

The DOL news release can be found here.

As previously reported, OSHA has temporarily stopped implementation and enforcement of the ETS until this is resolved in the courts.

Keep checking in with us on this fast-changing topic, and we will continue to keep you updated.

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com

Posted On December 01, 2021