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What mandates presently apply?

Written by: John A. Conley, Aaron E. Kacer and Lauren A. Crawford

Three federal COVID-19 vaccine mandates have proven to be a frequently-moving target for employers nationwide as to both implementation and compliance.  As of the date of this article, all three vaccine mandates are blocked in full or in part.

On September 9, 2021, President Biden announced federal COVID-19 vaccination mandates as part of his COVID-19 Action Plan, Path Out of the Pandemic.  The same day, the President issued Executive Orders on COVID-19 vaccination for Federal employees and safety protocols for Federal contractors (the “Federal Contractor Mandate”).[1]  On November 5, 2021, the Centers for Medicare and Medicaid Services (“CMS”) and the Occupational Safety and Health Administration (“OSHA”) released interim final rules directed towards employers to require (per CMS) or strongly suggest (per OSHA) employees receive the COVID-19 vaccination.  According to the current Administration, approximately two thirds of all private sector employees in the United States would be covered by COVID-19 vaccination rules.[2] 

Many states, including Arizona, have challenged the new rules through state legislation and litigation.  On November 12, 2021, a federal court in Louisiana stayed enforcement and implementation of the OSHA Rule.[3]  All petitions for review of the OSHA Rule, including the Fifth Circuit’s ruling, were consolidated and are now before the U.S. Court of Appeals for the Sixth Circuit.  

Shortly thereafter, on November 29, 2021, a federal court in Missouri granted a preliminary injunction blocking the CMS Rule against any and all Medicare- and Medicaid-certified providers and suppliers within Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming pending a trial on the merits.  The following day, the court issued a preliminary injunction to cover all 50 states. 

On November 30, 2021, a federal court in Kentucky issued an order granting a preliminary injunction to block the enforcement of the Federal Contractor Mandate in all covered contracts in Kentucky, Ohio, and Tennessee.  Presently, this means that any covered contractors not affected by the injunction must be fully vaccinated (unless they qualify for a legal exemption) on or before January 18, 2022.  Challenges to the Federal Contractor Mandate are presently pending in other jurisdictions, which may result in an extension of the preliminary injunction to additional states.             

Stay tuned for additional developments and updates on the federal vaccine mandates and contact Aaron Kacer or Lauren Crawford with any questions.  In the meantime, if you have questions about any COVID-19 employment-related issues, please contact John Conley.


[1]  See Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, available here, signed September 9, 2021; Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, available here, signed September 9, 2021.

[2]  See Fact Sheet: Biden Administration Announces Details of Two Major Vaccination Policies, available here, released on November 4, 2021. 

[3]  See BST Holdings, L.L.C., et al. v. Occupational Safety & Health Admin., et al., No. 21-60845, 2021 WL 5166656, at *1 (5th Cir. Nov. 6, 2021), adhered to sub nom. BST Holdings, L.L.C. v. Occupational Safety & Health Admin., United States Dep’t of Labor, 17 F.4th 604 (5th Cir. 2021), available here; see Petition for Review, available here