September 10, 2021 – In the last few weeks, various courts around the country have issued decisions regarding the Biden Administration’s COVID-19 vaccine mandates.

With respect to the OSHA vaccine mandate, the Sixth Circuit Court of Appeals, on December 17, 2021, issued a decision allowing the OSHA vaccine mandate to go into effect, reversing a decision issued by the Fifth Circuit Court of Appeals. Following this decision, OSHA announced that it would not issue any citations for noncompliance with the administrative aspect of the rule before January 10, 2022, and would not issue citations for noncompliance with the mandate’s testing requirements until February 9, 2022, so long as an employer is making reasonable efforts to come into compliance. Several of the states and other parties that challenged the OSHA vaccine mandate have already appealed the decision to the U.S. Supreme Court, and requested that a stay of the OSHA mandate be reimposed. Justice Kavanaugh will hear the appeal; however, he may refer the appeal to the full Court.

On the same day, the Eleventh Circuit Court of Appeals denied the Biden Administration’s request to dissolve a nationwide injunction blocking enforcement of the COVID vaccine mandate for federal contractors. The injunction put in place by the Southern District of Georgia continues to apply, blocking the federal contractor vaccine mandate nationwide. The Georgia court’s decision follows a similar decision issued by a federal court in Kentucky issued on December 3, 2021; however, that decision only applied in Kentucky, Ohio, and Tennessee. A federal court in Louisiana later issued a decision that also enjoined the Biden Administration from enforcing the federal contractor vaccine mandate. A key point in these decisions is that the courts believe that the states and companies that filed the lawsuits have a good chance of succeeding on the merits of their claims. While the Biden Administration has not yet announced whether it intends to file an appeal with the U.S. Supreme Court following the Eleventh Circuit’s decision, considering the course of these multiple lawsuits, it is very likely that it will appeal.

As of this bulletin, and until the U.S. Supreme Court acts, OSHA’s “vaccine-or-testing” rule is back in effect with new implementation deadlines of January 10, 2022, for the administrative aspects of the rule and February 9, 2022, with respect to the testing requirement. The federal contractor vaccine mandate, however, continues to be on hold.
The impact of the decision allowing the OSHA vaccine-or-testing rule to go into effect means that employers covered by the rule should continue to prepare the relevant policies, develop a testing protocol, and collect employees’ vaccine status. With respect to the federal contractor vaccine mandate, while it is temporarily blocked, federal contractors should continue to be prepared to implement a COVID vaccine mandate in the event that the U.S. Supreme Court reverses the decisions of the lower courts.

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