The vaccine mandates President Biden announced on September 9 have not aged well. Two are enjoined nationwide and a skeptical Supreme Court so undermined one that the government withdrew it, at least for the immediate future. Only one, an interim final rule applicable to employees at healthcare facilities receiving Medicare and Medicaid funds, is still standing. And it is questionable whether that mandate will remain in place once it becomes clear what the impact on operations will be on attrition caused by requiring personnel at those medical facilities to be vaccinated irrespective of their personal objections (those employees can apply for medical or religious accommodations, but the exceptions are narrow).
While three of the federal mandates are unraveling, contractors should understand their current status and continue to monitor them. Litigation is ongoing, so it is possible, although increasingly unlikely, that two of them – the federal contractor and federal employee mandates – will be back. In addition, several federal facilities are still requiring as a condition of entry that contractor employees working on those facilities sign certifications as to their vaccination status and, if not vaccinated, present a negative COVID-19 test within the prior 72 hours.
The Mandates Are Collapsing
Last fall, President Biden announced the following four mandatory vaccination requirements that he hoped would increase the number of Americans vaccinated against COVID-19:
- The federal contractor mandate that we have written about extensively on this blog (Executive Order (EO) 14042).
- A requirement that federal employees be vaccinated (EO 14043).
- An Occupational Safety and Health Administration vaccination or testing Emergency Temporary Standard applicable to companies with 100 or more employees.
- A CMS interim final rule requiring employees at Medicare- and Medicaid-certified facilities be vaccinated as a condition of participation.
As discussed below, the mandates have not fared well.
The Government Contractor Mandate
In total, 25 states and several private organizations challenged the president’s authority to issue a mandate requiring that government contractor employees be vaccinated. A total of six suits were filed in district courts in Kentucky, Georgia, Louisiana, Missouri, Florida, and Texas. In all six of those cases, the judges granted the plaintiffs’ motions for preliminary injunctions, concluding the plaintiffs had demonstrated a likelihood of success in their arguments that EO 14042 was unlawful.
While the reasoning of those decisions differed, five of the six concluded that the president did not have authority under the Federal Property and Administrative Services Act, 41 U.S.C. § 101 et seq.(FPASA) to order such a sweeping public measure on the premise that the president has the authority to order private companies to require that employees undergo an irreversible medical procedure in order to improve the economy and efficiency of the federal procurement system. Various courts also found that (1) the vaccine mandate improperly intruded into an area left to the states according to the 10th Amendment; (2) there were administrative problems with the implementation of the mandate; and (3) if FPASA did authorize the president to issue the vaccine mandate, it likely violated the non-delegation doctrine.
The preliminary injunctions also differed in scope. Of the six, only one extended beyond the parties that had filed suit to include contractors and subcontractors in the plaintiff states. That court, the District Court for the Southern District of Georgia, enjoined the contractor mandate nationwide because the Associated Builders and Contractors national organization had intervened in the case. Because that organization has members in all 50 states, the judge determined he could not provide adequate relief without the injunction covering the entire country.
Unsurprisingly, the Department of Justice (DOJ) appealed the preliminary injunctions in all but the Texas case and all of the district court challenges are, for the time being, stayed. To date, DOJ has not done any better at the appellate level.
On January 5, the Sixth Circuit, which is considering the appeal from the preliminary injunction issued by the court in Kentucky, issued a lengthy decision denying DOJ’s request to stay the injunction pending the appeal. In a 2-1 decision, the court held that DOJ did not meet a single one of the four requirements for a stay. Specifically, the court concluded the following:
- DOJ was not likely to succeed in its arguments that the plaintiffs lacked standing or that the president’s actions were authorized under the FPSA.
- DOJ did not demonstrate irreparable harm if the stay was not issued.
- DOJ failed to show that a stay would not substantially injure the other interested parties.
- The public interest weighed in favor of leaving the injunction in place.
In a clear and concise summary of what may ultimately be the undoing of the contractor vaccine mandate, in two paragraphs on pages 22 and 23 of its decision, the Sixth Circuit explains why FPASA does not authorize the president to require that contractor employees be vaccinated:
By its plain text, the Property Act [FPASA] does not authorize the contractor mandate. The government itself offers virtually no textual analysis, which is unsurprising given that the text undermines its position.
[E]ven if we construed the statement of purpose in § 101 as an operative grant of power, its text does not, in fact, authorize the President to take “necessary measures” to procure “economical and efficient” “nonpersonal services.” It permits him to employ an “economical and efficient system” to “procur[e] those nonpersonal services.” …. The President thus has statutory authority to implement an “economical and efficient” method of contracting – a “system,” in other words – to obtain nonpersonal services. But there is no textual warrant to suggest that after the President or his agents have “economical[ly] and efficient[ly]” acquired those services that they then may impose whatever medical procedure deemed “necessary” on the relevant services personnel to make them more “economical and efficient.”
Similarly, the Eleventh Circuit, which is considering DOJ’s appeal of the Southern District of Georgia’s nationwide injunction, issued a brief opinion on December 17, denying DOJ’s motion to stay the injunction pending the appeal because the court found that the government had failed to demonstrate that it would suffer irreparable injury absent a stay.
However, the court did expedite DOJ’s appeal of the preliminary injunction. DOJ’s opening brief was filed on January 18, the response is due February 8, and the government’s reply is due on February 22. The Eleventh Circuit scheduled an oral argument for April 4.
The other appeals at the Fifth (Louisiana), Eighth (Missouri), and Eleventh (Florida) Circuits are still in the early stages. But irrespective of what happens in other circuit courts, the nationwide injunction issued by the Georgia district court will almost certainly be in place until at least mid-April and likely for much longer.
While the contractor vaccinate mandate is enjoined, the Task Force made clear that “[c]ontractor employees working on site in those [government] buildings and facilities must still follow Federal agency workplace safety protocols when working onsite.”
The Federal Employee Vaccine Mandate
Pursuant to EO 14043, President Biden directed that all federal employees be vaccinated against COVID-19 or lose their jobs. That requirement has primarily achieved the administration’s goal, with the vast majority of federal employees having now been vaccinated.
So, to a certain extent, the injunction issued on January 21 by the District Court for the Southern District of Texas, which halted the federal employee mandate nationwide, has arrived too late, at least for those federal employees who retired early or quit instead of receiving the vaccine. But for the remaining unvaccinated federal employees, it is a welcome relief.
The district court clarifies, as have the majority of courts that have considered the legality of the vaccine mandates, that the question is not whether people should be vaccinated against COVID-19. Rather, it is whether the president, acting without Congressional input, is authorized by statute or his inherent constitutional powers under Article II, to require that millions of federal employees consent to an irreversible medical procedure as a condition of employment.
First, the court quickly dismissed DOJ’s arguments that the Civil Service Reform Act provided the exclusive method of relief because the challenge to the vaccine mandate was a challenge to “working conditions” and that the claims were not ripe because the unvaccinated employees have not yet contested any proposed suspension or dismissal. The court then held that:
- The plaintiffs faced irreparable injury because “no legal remedy adequately protects the liberty of employees who must choose between violating a mandate of doubtful validity or consenting to an unwanted medical procedure that cannot be undone.”
- The plaintiffs were likely to succeed on the merits of their arguments that the president did not have statutory or constitutional authority to issue the federal worker vaccine mandate because it is a public health measure, not an employment regulation.
- The government had not shown an injunction would do any serious harm because few federal employees remain unvaccinated and the balance of the equities tipped in favor of the plaintiffs as any harm to the government had to be balanced against harm caused by terminating unvaccinated employees “who provide vital services to the nation.” The court also stated that the government has no legitimate interest in enforcing unlawful mandates.
After determining the plaintiffs were entitled to an injunction, the court decided that tailoring the relief to the plaintiffs was not practical because the lead plaintiff has “more than 6,000 members spread across every state and in nearly every federal agency, and is actively adding new members.” For that reason, it enjoined the federal employee mandate nationwide.
The day the injunction was issued, January 21, DOJ appealed to the Fifth Circuit. At approximately the same time, the Task Force explained that while the vaccine mandate was enjoined, the other requirements still apply:
UPDATED To ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified, or vacated, depending on the course of ongoing litigation, the Federal Government will take no action to implement or enforce the COVID-19 vaccination requirement pursuant to Executive Order 14043 on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees. Safer Federal Workforce Task Force guidance on other Federal agency safety protocols based on vaccination status—including guidance on protocols related to masking, distancing, travel, testing, and quarantine—remains in effect. For answers to frequently asked questions (FAQs) on compliance with the applicable preliminary nationwide injunction, see this guidance (Issued January 24, 2022; PDF, Download Adobe Reader).
The OSHA Emergency Temporary Standard
On November 5, OSHA issued an Emergency Temporary Standard (ETS) requiring that employers with 100 or more employees require either that all of their employees be vaccinated or that their unvaccinated employees be tested for COVID-19 at least once a week and that they show proof of a negative test as a requirement to enter the workplace. In order to issue the rarely-used emergency standard, OSHA was required first to determine that the measure, issued without notice and comment, was “necessary” to address “grave danger” due to exposure to “substances or agents determined to be toxic or physically harmful,” a definition OSHA asserted was met by the COVID-19 virus. Immediately after the ETS was issued, it was challenged in circuit courts across the country.
The Fifth Circuit was the first to act, enjoining the ETS in a brief order on November 6, because “the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate ….” One week later, the Fifth Circuit issued a more fulsome explanation for the injunction in a 22-page opinion reaffirming its decision to enjoin the OSHA mandate.
Because challenges were filed to the OSHA ETS in multiple circuit courts within a brief period, the cases were consolidated at one circuit court after a random selection process. The selected court, the Sixth Circuit, then had the option to leave the injunction in place, modify it, or dissolve it.
In a 2-1 decision issued on December 17, the Sixth Circuit dissolved the injunction, reinstating the OSHA ETS. Some of the plaintiffs immediately sought emergency relief from the Supreme Court, a request that went to Justice Kavanaugh, who is responsible for the Sixth Circuit. Rather than resolving the matter himself, Justice Kavanaugh referred the matter to the full court, which held an oral argument on January 7.
Less than a week later, on January 13, the Supreme Court issued an opinion holding that OSHA’s vaccine mandate was a public health measure, not a workplace safety measure, and was therefore beyond OSHA’s statutory authority. The Supreme Court found it particularly relevant that neither OSHA nor Congress had ever issued such a mandate. Because the applicants were likely to succeed on the merits of their arguments and the equities did not justify withholding interim relief, the Court granted the requests to stay agency action, reinstating the preliminary injunction and returning the case to the Sixth Circuit for a determination on the merits.
While the Court held that OSHA could not issue a vaccine mandate of general applicability, it did state that OSHA could regulate industry-specific risks relating to COVID-19:
That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction— between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.” 29 U. S. C. §655(b) (emphasis added).
Rather than litigate the merits of the ETS, on January 26, OSHA withdrew the ETS as an enforceable emergency temporary standard. OSHA did not, however, withdraw the ETS “to the extent that it serves as a proposed rule … and th[e] action does not affect the ETS’s status as a proposal under section 6(b) of the Act or otherwise affect the status of the notice-and-comment rulemaking commended by the Vaccine and Testing ETS.” It remains to be seen whether OSHA will allow the vaccine/testing regulation to go forward in its current form in light of the Supreme Court’s clear statement that it would be unlawful. At a minimum, it seems likely that OSHA will issue industry-specific COVID-19 safety standards that the Court suggested would be within OSHA’s authority.
The CMS Interim Final Rule – The Last Mandate Standing
On November 5, CMS published in the Federal Register an interim final rule mandating that, as a condition of participation, 15 types of Medicare and Medicaid certified providers and suppliers – including hospitals, long-term care facilities, rural health clinics, and end-stage renal disease facilities, among others – require that their employees be vaccinated for COVID-19. In total, according to CMS, the mandate covers 10.4 million healthcare workers at 76,000 medical facilities. A significant number of those workers remain unvaccinated: According to an analysis by CDC researchers published in the American Journal of Infection Control, as of September 15, 30% of 3.3 million healthcare workers in more than 2,000 hospitals remained unvaccinated against COVID-19. In some facilities, the percentage of unvaccinated hospital workers is as high as 55%.
The mandate was quickly challenged by 26 states in district court actions in Florida, Louisiana, Missouri, and Texas, with the plaintiffs seeking preliminary injunctions in each of those cases. While the Florida court denied the request for an injunction, as did the Eleventh Circuit in the appeal from that decision, preliminary injunctions were issued in the three other cases:
- On November 29, the Eastern District of Missouri enjoined the decision in the 10 plaintiff states – Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.
- The following day the Western District of Louisiana enjoined the mandate nationwide.
- On December 15, the Northern District of Texas issued a limited injunction applicable only to Texas.
In response to the injunctions issued by the Louisiana and Missouri courts, CMS announced in early December that it had suspended implementation of its mandate pending developments in the legal challenges.
DOJ appealed two broad preliminary injunctions to the Eighth Circuit (Missouri) and the Fifth Circuit (Louisiana), and requested a stay pending appeal in each. The first to rule on DOJ’s motions to stay pending appeal was the Eighth Circuit, which denied DOJ’s emergency motion in a two-sentence order on December 13, leaving the injunction in place in the 10 plaintiff states.
In the appeal from Louisiana’s nationwide preliminary injunction, the Fifth Circuit, which ruled on DOJ’s motion to stay on December 15, held that an injunction was warranted but that the Louisiana court’s decision to enjoin the CMS mandate nationwide was not. Instead, the court limited the scope of the injunction to the 14 plaintiff states in that matter – Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio – holding that the mandate was “an issue of great significance currently being litigated throughout the country” and that the “ultimate resolution” of the matter “will benefit from ‘the airing of competing views’ in our sister courts.”
Rather than wait for the appellate process to play out, on December 17 DOJ asked the Supreme Court to stay the Louisiana and Missouri preliminary injunctions that covered 24 states, arguing that it would be irreparably harmed if the injunctions were not stayed. The request went to Justice Alito, who referred the matter to the full Court like Justice Kavanaugh with the federal contractor mandate. At around the same time, CMS announced that it would implement an enforced mandate in the 25 states in which the mandate was not enjoined, requiring that employees of covered providers have at least one vaccine dose by January 27, and have all primary vaccine doses no later than February 28.
The Supreme Court held an oral argument in the CMS case on January 7, the same day it heard the OSHA ETS argument. In its decision, which was also issued on the same day as the OSHA ETS decision, January 13, the Court upheld the CMS vaccine mandate in an unsigned opinion joined by five Justices. The Court determined that CMS has broad powers to set the conditions of participation in the federal healthcare programs and that those conditions have historically included rules relating to the provision of healthcare and the qualifications of healthcare providers. Because requiring employees be vaccinated was necessary to protect patients in those facilities from “a highly contagious, dangerous – and especially for Medicare and Medicaid patients – deadly disease,” the Court overturned the Louisiana and Missouri injunctions applicable in 24 states (the Texas injunction was not included in DOJ’s request to the Supreme Court, but that injunction was lifted when the Northern District of Texas dismissed the case without prejudice on January 19). Ultimately, the fact that the CMS mandate was tailored to the pandemic risks associated with the healthcare industry, in contrast to the overly broad OSHA rule, appears to have played a key role in the Court’s decision.
CMS has issued extensive guidance to providers regarding implementation of the interim final rule, much of which is available here. In sum, the CMS vaccine mandate is being implemented in two phases.
Phase 1 requires that facilities have all policies and procedures in place and staff covered by the regulations have received at least one vaccine dose of a primary vaccine series before providing any services for a facility or its patients.
The Phase 2 requirements, which must be complied with within one month after Phase 1, require that staff must be fully vaccinated unless they have been granted medical or religious exemptions or whose vaccination must be temporarily delayed according to CDC recommendations. Because of the various injunctions, the CMS mandate was effective on different dates in different states. Therefore, CMS set three different compliance dates:
- In the 25 states that the Fifth Circuit held on December 15 were improperly included in the scope of the Louisiana nationwide injunction, facilities must comply with Phase 1 by January 27 and Phase 2 by February 28.
- In the 24 states in which the mandate was enjoined by the Missouri and Louisiana (as limited by the Fifth Circuit) injunctions, both of which were stayed by the Supreme Court, facilities must comply with Phase 1 by February 14 and Phase 2 by March 15.
- Finally, in Texas, facilities must comply with Phase 1 by February 22 and Phase 2 by March 21.
Given that one compliance date has already passed and the others are coming soon, we will quickly know the mandate’s full impact on the ability of healthcare facilities to maintain sufficient staff to provide quality care. As mentioned above, the government estimates that a significant percentage of the staff covered by the mandate are not vaccinated. It is questionable whether those individuals who have had ready access to free vaccines for a year will comply with the mandate, particularly in an incredibly tight job market that has already left many medical facilities woefully understaffed. Based on data posted by HHS on January 27, 12% of U.S. hospitals are already critically understaffed (over 70% in Vermont), and 23% anticipate critical staffing shortages within the next week.
Indeed, data from states like New York and Maine that have already implemented vaccine mandates applicable to healthcare workers have created serious staffing shortages, putting further pressure on our healthcare sector that is already strained by the COVID-19. According to a December 13 New York Times article, New York alone is estimated to have lost approximately 37,000 workers, 4% of its healthcare workforce, due to the vaccine mandate that went into effect in late September 2021. This extraordinary loss caused Governor Hochul to declare a state of emergency due to the shortage of medical staff in upstate New York and call in “the National Guard to assist in short-staffed nursing homes as coronavirus cases increase.” Further, the shortages created by these state healthcare mandates have already forced at least one health system to suspend or reduce the provision of vital services, including maternity services, and forced some nursing homes and assisting living facilities to close.
Government Facility Entry Requirements
If the four vaccine mandates discussed above were not confusing enough, various government entities have also issued site-specific guidance regarding vaccine or testing requirements. For example, some agencies require that all contractor employees be vaccinated before entering certain facilities. Others, following guidance on the Task Force website, had stated that they will require that before entry, contractor employees certify their vaccination status and, if not fully vaccinated, provide a negative COVID-19 test from the prior 36 hours (some agencies, such as the Department of Energy, had informed contractors that it would implement that requirement even before the Task Force issued its guidance).
More recently, those requirements for onsite contractors appear to be relaxing. For example, Department of Defense (DoD) guidance issued on December 20 provides at Attachment 2 that contractor personnel must complete and maintain a current DD Form 3510 certification of vaccination and that if they are not fully vaccinated, they will be subject to COVID-19 screening testing at least once a week rather than every 36 hours. And the screening testing policy, which is set forth at Attachment 7, states that “DoD Components will … [p]rocure and provide these COVID-19 self-tests and establish guidance for where and how these tests will be distributed and conducted and how results are to be reported.” If, however, the screening test is administered offsite, the negative test result must be from a test performed within the prior 72 hours. This appears to mean that contractors with employees onsite at DoD facilities should ensure they are enrolled in the onsite testing program, in which case contractors will likely not have to pay for tests or track their employees’ vaccination or testing status.
Further, the Task Force recently updated its testing FAQs, explaining that agencies are not required to, but may, include onsite contractor employees in their testing programs:
An agency generally does not need to include onsite contractor employees or fully vaccinated employees in its screening testing program. For certain roles, functions, or work environments, an agency may determine that it is necessary that certain onsite contractor employees, certain employees regardless of their vaccination status, or certain employees and certain onsite contractor employees regardless of their vaccination status must participate in screening testing, given operational or administrative considerations associated with conducting screening testing for those roles, functions, or work environments.
If a contractor employee is participating in an agency testing program, which the Task Force requires agencies to establish by February 15, the employee does not need to provide the results of a negative test every time they enter a government facility “unless required as part of the agency’s testing program and workplace safety protocols.” But the FAQs also states if that same contractor employee is visiting another agency’s facilities, the employee “should be able to show proof of a negative COVID-19 test administered within the past 3 days, if they are not fully vaccinated or decline to provide their vaccination information to the host agency.”
Given that both the contractor and the federal employee vaccine mandates have been found to be unlawful and enjoined nationwide, it is unclear if these facility-specific requirements will remain in place. But to the extent contractors experience costs or delays as a result of these new requirements in response to the COVID-19 pandemic, there may be opportunities to recover costs or extend the period of performance.
The past few months have been challenging as contractors, federal employees, companies with 100 or more employees, and Medicare and Medicaid certified facilities have all struggled with complying with the on-again, off-again vaccine mandates. The requirements are difficult to understand, hard to implement, and have placed management in direct conflict with employees regarding what is for many a deeply personal medical decision about an irreversible procedure.
For that reason, many companies likely welcome the fact that three out of the four mandates have been either enjoined or withdrawn, leaving most to now decide for themselves whether mandating that employees be vaccinated is the best course for their company. And it is possible that the remaining CMS mandate, which covers approximately 10 million people, will be relaxed as the government begins to realize that a mandate that may cause many thousands of healthcare employees to quit will exacerbate, not ease, the healthcare crisis.
In addition, it is not clear that the vaccine mandates are effective against the new Omicron variant. While the vaccines appear to still protect against severe illness, hospitalizations, and deaths due to infection with the Omicron variant, even the CDC has conceded that “anyone with Omicron infection can spread the virus to others, even if they are vaccinated or don’t have symptoms” and that “breakthrough infections in people who are fully vaccinated are likely to occur.”
And it seems arbitrary and capricious for the government to not view immunity gained from prior infection, something that could be demonstrated by a simple antibody test, as sufficient to satisfy the vaccine requirement given that a recent CDC study indicates that unvaccinated individuals with natural immunity are multiple times less likely to be infected or hospitalized with COVID-19 than those who have been vaccinated. That study concluded that during the week of October 3, rates of infection in those that were unvaccinated but had a previous COVID-19 diagnosis were “29-fold lower (95% CI = 25.0-33.1) than rates among unvaccinated persons without a previous COVID-19 diagnosis in California and 14.7-fold lower (95% CI = 12.6-16.9) in New York.” In contrast, the rates for those vaccinated without a previous diagnosis were only 6.2-fold lower in California and 4.5-fold lower in New York. Based on this data, the study concluded that “[r]ates among vaccinated persons without a previous COVID-19 diagnosis were consistently higher than rates among unvaccinated persons with a history of COVID-19….”
Recent COVID-19 hospitalization rates show a similar pattern:
During October 3–16, compared with hospitalization rates among unvaccinated persons without a previous COVID-19 diagnosis, hospitalization rates were 19.8-fold lower (95% CI = 18.2–21.4) among vaccinated persons without a previous COVID-19 diagnosis, 55.3-fold lower (95% CI = 27.3–83.3) among unvaccinated persons with a previous COVID-19 diagnosis, and 57.5-fold lower (95% CI = 29.2–85.8) among vaccinated persons with a previous COVID-19 diagnosis.
It remains to be seen how this new evidence regarding the efficacy of the vaccines compared to natural immunity will be weighed by the courts still considering the challenges to the contractor and federal employee mandates, or whether those cases will turn on the legal issues alone. Even if it is the latter, the DOJ’s chances of reviving those two enjoined mandates seem slim.