A Dizzying Map of Federal Vaccination Mandates, Injunctions and Stays

Keeping track of a dizzying number of injunctions and stays by multiple federal district courts and courts of appeal involving three separate federal COVID-19 vaccination mandates with a couple exceptions is no small task. Some companies are impacted by two or even three mandates. The Occupational Safety and Health Administration (OSHA), Centers for Medicare & Medicaid Services (CMS) and federal contractor mandates are all premised upon different regulatory regimes, but certain judicial doctrines such as the so-called major questions doctrine are at issue in cases addressing all three. Companies with operations in multiple states may be subject to one mandate in a state but not another and to inconsistent law relating to mandate exceptions.

OSHA Mandate

The OSHA mandate is once again applicable nationwide, subject only to conflicting state law. On Dec. 17, 2021, a split panel of the U.S. Court of Appeals for the Sixth Circuit raised the OSHA mandate from the dead by granting the government's motion to dissolve the stay imposed by the Fifth Circuit. In re: MCP No. 165, Case Nos. 21-7000 (6th Cir. Dec. 17, 2021). Consequently, OSHA has announced revised compliance deadlines. (See previous Holland & Knight alert, "OSHA's Emergency Temporary Standard on COVID-19 Vaccination or Testing Is Back On (for Now)," Dec. 20, 2021.) However, on Dec. 22, 2021, the U.S. Supreme Court announced that it will hold a special hearing on Jan. 7, 2022, to consider applications to stay the mandate presented to Justice Brett Kavanaugh. National Fed'n of Indep. Bus. v. Dep't of Labor, Case No. 21A244 (Dec. 22, 2021); Ohio v. Dep't of Labor, Case No. 21A247 (Dec. 22, 2021).

CMS Mandate

The CMS mandate is enjoined in part of the country. It could apply elsewhere such as in Florida but for CMS' suspension of its enforcement efforts pending further litigation developments. On Dec. 15, 2021, the Fifth Circuit (as predicted by the Eleventh Circuit) entered an order paring back an injunction imposed nationwide by a Louisiana district court to only those states that sued in that court: Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah and West Virginia. Louisiana v. Becerra, No. 21-30734 (5th Cir. Dec. 15, 2021). Procedurally, the court denied the government's motion to stay as to the plaintiff states, but granted it as to any other jurisdiction.

There is no injunction against the CMS mandate in Florida where on Dec. 6, 2021, a split panel of the Eleventh Circuit sustained the denial of an injunction against the CMS mandate. Florida v. Dep't of Health and Human Services, Case No. 21-14098-JJ (11th Cir. Dec. 6, 2021). An injunction is in place in much of the West. A Missouri court enjoined the CMS mandate in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. On Dec. 13, 2021, the Eighth Circuit entered an order denying the federal government's motion to stay that injunction. Missouri v. Biden, No. 21-3725 (8th Cir. Dec. 13, 2021).

However, at its special hearing on Jan. 7, 2022, the Supreme Court will also consider an application to stay the CMS mandate presented to Justices Kavanaugh and Samuel Alito in both this case and the Louisiana case. Biden v. Missouri, Case No. 21A240 (Dec. 22, 2021); Becerra v. Louisiana, Case No. 21A241 (Dec. 22, 2021).

Federal Contractor Mandate

The federal contractor mandate is enjoined nationwide. A Georgia district court is responsible because a plaintiff advocacy organization represented contractors nationwide. (See previous Holland & Knight alert, "Federal Court Grants Nationwide Injunction Against Government Contractor Vaccine Mandate," Dec. 8, 2021.) On Dec. 17, 2021, a unanimous panel of the Eleventh Circuit refused to stay the injunction on the grounds that the government failed to establish irreparable injury absent a stay. Georgia v. President, Case No. 21-14269-F (11th Cir. Dec. 17, 2021).

Other district courts have also enjoined the federal contractor mandate. Specifically, on Nov. 30, 2021, the U.S. District Court for the Eastern District of Kentucky in Kentucky v. Biden, Case No.3:21-cv-00055-GFVT, enjoined the federal contractor mandate in Ohio, Tennessee and Kentucky. The ruling is on appeal. Likewise, on Dec. 20, 2021, the U.S. District Court for the Eastern District of Missouri in Missouri v. Biden, Case No. 4:21-CV-1300 DDN, enjoined the federal contractor mandate in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota and Wyoming. Moreover, on Dec. 22, 2021, the U.S. District Court for the Middle District of Florida in Florida v. Nelson, Case No. 8:21-cv-2524-SDM-TGW, enjoined the federal contractor mandate in any covered contract in Florida. Other district court cases are pending in Arizona and Texas.

Major Question Doctrine

One issue at stake in cases challenging all three mandates is whether Congress meant to confer upon the relevant federal agency (or the president) the authority to issue the mandate, raising separation of powers and federalism questions. The major question doctrine takes its name from a decision in which the Supreme Court announced: "We expect Congress to speak clearly when authorizing an agency to exercise powers of vast 'economic and political significance.' " Utility Air Reg. Grp. v. Envtl. Prot. Agency, 573 U.S. 302, 324 (2014). On this basis, the Supreme Court struck the Centers for Disease Control and Prevention's moratorium on residential evictions.

The Fifth Circuit and several district courts doubt that Congress intended to authorize the federal vaccination mandates either. BST Holdings, LLC v. Occupational Safety and Health Admin., 17 F. 4 th 604 (5th Cir. 2021). The district courts commented that if the vaccination mandate had enough of a nexus then "virtually any measure of the president's whim" would also pass muster. Kentucky v. Biden, Case No. 3:21-cv-00055; see also Georgia v. Biden, Case No. 1:21-cv-163; Missouri v. Biden, Case No. 4:21-cv-01300.

In contrast, split panels of the Sixth Circuit and Eleventh Circuit ruled the opposite. Florida v. Dep't of Health and Human Serv., Case No. 21-14098-JJ (11th Cir. Dec. 6, 2021). According to the Sixth Circuit, the OSHA mandate is not an enormous expansion of regulatory authority; OSHA has regulated the spread of disease in the past. In re: MCP No. 165, Case Nos. 21-7000 (6th Cir. Dec. 17, 2021).

Regulatory Nexus

Each of the mandate cases looks closely at the nexus between the purposes of the pertinent regulatory regime and the mandate. A Dec. 7 decision by the U.S. District Court for the Southern District of Georgia in Georgia v. Biden, Case No. 1:21-cv-163, is indicative. Recognizing that the Eleventh Circuit refused to enjoin the CMS mandate, the district court ruled that the case had no impact on its decision to enjoin the federal contractor mandate. The Eleventh Circuit ruled in Florida v. Dep't of Health and Human Servs., Case No. 21-14098-JJ (11th Cir. Dec. 6, 2021) that Medicare and Medicaid statutes directly relate to efforts to prevent the spread of disease at facilities that participate in those insurance programs, whereas the district court decided that the Federal Property and Administrative Services Act, 40 U.S.C. § 101 et seq., the authorizing statute for Executive Order 14042, does not authorize implementation of health and safety measures. Id. n. 9. A different panel of the Eleventh Circuit than the one that decided the CMS mandate case unanimously refused to stay the injunction against the federal contractor mandate. Georgia v. President, Case No. 21-14269-F (11th Cir. Dec. 17, 2021).

Exceptions

All three federal mandates are subject to two federal exceptions: the Americans with Disabilities Act (ADA) disability exception and Title VII religious objection exception. (See previous Holland & Knight alert, "How Limiting Are the Limitations on Mandatory Employer Vaccination?," Dec. 28, 2020.) Florida has enacted a statute, Section 381.00317, Florida Statutes, creating additional exceptions. It penalizes employers if they terminate or functionally terminate an employee who presents one of five approved forms requesting a vaccination opt-out. (See previous Holland & Knight alert, "Florida Gov. Ron DeSantis Signs Bills Regarding Vaccine Mandates," Nov. 18, 2021.)

As compared to federal law, additional opt-out reasons under Florida law include COVID-19 immunity, periodic testing and the use of employer-provided personal protective equipment. The medical reasons exception under Florida law may also be broader than its federal counterpart. All of this raises the question whether federal or state law should govern to the extent of a conflict. This preemption analysis would begin with a court inquiring whether the federal agency issuing the rules exceeded its statutory authority or acted arbitrarily and would then turn to the question whether compliance with both federal and state law is impossible.

Conclusion

The decision of the Supreme Court following the Jan. 7, 2022, special hearing will directly impact the enforceability of the OSHA and CMS mandates and likely impact the enforceability of the federal contractor mandate to the extent it touches on the major questions doctrine. Until then, companies with operations in multiple states will need to approach the three federal mandates, injunctions, stays, exceptions and state laws on a state-by-state basis, and remain flexible to react to more judicial decisions and agency announcements to come.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.