Vaccine Mandate Activity in November 2021

Following President Biden’s executive orders announced in September, litigation and state legislation has picked up nationwide to resist the vaccine mandates.  While we can’t review every effort and action in every state and court, we thought it might be helpful to point out some we believe to be of utmost importance to our clients.

• OSHA’s emergency temporary standard (ETS) remains under a nationwide temporary injunction.  OSHA has announced it will not enforce the mandate but has formally asked the Court to lift the injunction during its review of the 34 lawsuits.
  • The Department of Labor notes they are extending the public comment period on the OSHA ETS to January 19, 2022.  If they are successful in defending their ETS, they intend to make it a permanent standard that all employers with 100+ employees would have to secure proof of vaccination or test their employees weekly while mandating mask use, and they are considering whether to impose the requirement on smaller employers, too.
• CMS’s vaccine mandate on several types of health care providers accepting Medicare and Medicaid is under a temporary injunction from U.S. District Judge Matthew Schelp in the 10 states that filed a lawsuit in St. Louis, Missouri: AK, AR, IA, KS, MO, NE, NH, ND, SD, and WY.  The Biden administration has already asked the Eight Circuit Court of Appeals to lift the stay, but there is already another temporary injunction from U.S. District Judge Terry Doughty in Monroe, Louisiana, which applies nationwide except in the 10 states already granted their own injunction.
  • Update December 15: A federal appeals court limited the Louisiana injunction to just the 14 states that brought that legal challenge forward, instead of having it apply nationwide.  So in addition to the Missouri decision for the 10 states above, CMS cannot enforce the mandate in these additional states: AL, AZ, GA, ID, IN, KY, LA, MS, MT, OH, OK, SC, UT, and WV
• The vaccine mandate on federal contractors and subcontractors is under a temporary injunction from U.S. District Judge Gregory Van Tatenhove in the three states that filed a lawsuit in Frankfort, Kentucky: KY, OH, and TN.  There are at least a dozen more lawsuits in the works around the nation.
  • Update December 7: A federal court in Georgia expanded the stay to apply nationwide and orders the federal government to not enforce the mandate on federal contractors/subcontractors while the legal review ensues.
• The White House announced they will hold off on terminating federal employees who are not fully vaccinated, instead giving them until January 18 to comply.
• Kansas convened a special session of the state legislature to pass a new law which prohibit employers from denying provider-substantiated medical or sincere religious accommodation requests, fines employers that violate these rules, and opens up unemployment benefits to those terminated due to vaccine mandates retro to September 9, 2021.  Governor Laura Kelly promptly signed the new law.  Foulston Siefkin law firm summarizes the requirements here.

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.