Supreme Court Hears Oral Arguments in Vaccine Mandate Challenges
- January 07, 2022
The U.S. Supreme Court held oral arguments on January 7 to consider whether to allow two of the administration’s vaccine mandates—one for large employers and one for health care workers—to take effect in the face of a spate of lawsuits challenging the requirements.
At issue are an emergency temporary standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) requiring all businesses with 100 or more employees to ensure their workers are fully vaccinated or are tested on a weekly basis, and an interim final rule (IFR) issued by the Centers for Medicare & Medicaid Services (CMS) requiring COVID-19 vaccinations for health care workers in hospitals and other facilities and settings that participate in Medicare and Medicaid.
The Supreme Court is considering the challenges on an expedited basis. Although the Fifth Circuit initially stayed the large employer mandate, the Sixth Circuit subsequently dissolved the stay. According to OSHA’s website, the agency is exercising enforcement discretion with respect to the compliance dates of the ETS until January 10 and until February 9 for the testing requirements.
Under the IFR, health care workers are required to be vaccinated by January 4; however, an injunction is in place for 24 states following court challenges.
At the end of last month, the U.S. District Court for the Eastern District of Missouri granted a preliminary injunction to ten states after finding CMS likely exceeded its statutory authority in issuing the IFR. The Eighth Circuit denied December 13, 2021 the administration’s request for a stay of the injunction in the ten states pending appeal.
On November 30, 2021, the U.S. District Court for the Western District of Louisiana enjoined the vaccine mandate in the remaining states not covered under the injunction granted by the Missouri federal district court. The Fifth Circuit, on December 15, 2021, also declined to stay that injunction, but narrowed its scope to the 14 states that brought the challenge.
On December 5, 2021, the Eleventh Circuit refused to grant an injunction to Florida in its challenge to the IFR. The Eleventh Circuit held that the state failed to establish a substantial likelihood it would succeed on the merits of its claim that CMS lacked statutory authority to issue the vaccination requirement, that the agency should not have bypassed notice-and comment-rulemaking, and that the rule was arbitrary and capricious.