UPDATE: On the evening of December 22, the Supreme Court announced that Justice Kavanaugh has referred the applications for an emergency stay of the OSHA ETS to the full court, those applications have been consolidated, and consideration of those applications has been deferred pending oral argument scheduled for January 7, 2022.
On January 7, the Supreme Court will also hear the oral argument regarding the application by the Department of Justice for a stay of the injunction issued by the District Court for the Western District of Louisiana of the CMS vaccine mandate. That application, which was submitted to Justice Alito, who is responsible for emergency applications from the Fifth Circuit, was also referred to the full Court.
In addition, on December 22, the District Court for the Southern District of Florida granted Florida’s request for a preliminary injunction of the government contractor mandate. This is the fifth injunction of that mandate, with four of the five courts finding that the president exceeded his authority under the Federal Property and Administrative Services Act. The parties have been given until December 29 to propose a preliminary injunction consistent with the order.
Finally, as of December 23, it does not appear that DOJ has sought an emergency stay of the injunctions of the government contractor vaccine mandate from the Supreme Court.
In the past few days, there have been multiple developments in the legal challenges to the various vaccine mandates, one in favor of a mandate, one against. In addition, the first vaccine mandate challenge has now reached the Supreme Court, which many commentators have suggested will ultimately have to resolve the challenges to the Centers for Medicare & Medicaid Services (CMS), Occupational Safety and Health Administration (OSHA), and government contractor vaccine mandates.
These developments raise new questions and challenges for government contractors with 100 or more employees. While there is a reasonable likelihood that all of the vaccine mandates will ultimately be halted by the courts, contractors must be prepared in case that does not occur or does not occur in advance of enforcement dates.
The Eleventh Circuit Leaves the Nationwide Injunction of the Government Contractor Vaccine Mandate in Place
On December 17, the Eleventh Circuit issued a very brief opinion denying the Department of Justice’s (DOJ) motion to stay the nationwide injunction of the government contractor vaccine mandate issued on December 7 by the District Court for the Southern District of Georgia. After reviewing the parties’ briefs, which were filed on an expedited basis, the court denied the motion “because the government has not established one of the ‘most critical factors’ – that it will be irreparably injured absent a stay.”
After stating that it is leaving the status quo in place, the court expedited the government’s appeal of the preliminary injunction and set the case for the next available oral argument. DOJ’s initial brief is due on January 3, 2022, plaintiffs’ and intervenors’ replies are due January 17, 2022, and the reply brief is due on January 24, 2022. So for the next month or two, government contractors can put on hold questions such as which employees work “in connection” with a government contract or which facilities are “covered contractor workplaces.”
The Eastern District of Missouri Enjoins the Government Contractor Vaccine Mandate
Also, on December 20, the District Court for the Eastern District of Missouri became the fourth district court after decisions from Kentucky, Georgia, and Louisiana, to enjoin the government contractor mandate. Like the Kentucky and Georgia courts, the Missouri decision concluded that Executive Order 14042 exceeded the president’s authority under the Federal Property and Administrative Services Act.
Interestingly, in its consideration of the likelihood the plaintiffs would suffer irreparable injury if the court did not issue the preliminary injunction, the court appears to have made what may be a reversible error. DOJ had argued that the states could not show irreparable injury because they could seek compensation under the Contract Disputes Act (CDA) at the Court of Federal Claims (COFC). The court agreed with DOJ, but mistakenly cited the limitation on monetary relief applicable to bid protests, citing 28 U.S.C. §1491(b)(2) in support of the statement that in a CDA claim, “[COFC] may award declaratory or injunctive relief, but ‘any monetary relief shall be limited to bid preparation and proposal costs.’”
Finally, like the court in Kentucky, the court limited the scope of the injunction to “federal contractors and subcontractors in all covered contracts” in the plaintiff states, Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming.
The Sixth Circuit Dissolves the Stay of the OSHA Emergency Temporary Standard
Unfortunately, while the Eleventh Circuit’s denial of DOJ’s motion to stay, the nationwide injunction of the government contractor vaccine mandate gives some clarity with regard to the status of that mandate, on the same day the Eleventh Circuit issued its brief decision, the Sixth Circuit, dissolved the Fifth Circuit’s nationwide injunction of the OSHA Emergency Temporary Standard (ETS) requiring the employers with 100 or more employees require their employees to get vaccinated or provide a negative COVID-19 test every week. This presents some significant questions for government contractors with more than 100 employees.
There is a hierarchy of vaccine mandates, with the government contractor mandate taking precedence. But with the government contractor vaccine mandate on hold and a revived OSHA ETS, this appears to mean that contractors with 100 or more employees must immediately comply with the OSHA ETS unless they are in one of the more than 20 states that administer their own individual OSHA plans. For contractors in one of those states, it is likely that they will not have to comply until those plans, as they are required to do, issue rules at least as effective as the new federal vaccine/testing standards.
Helpfully, OSHA has provided some additional time to comply with the revised ETS, announcing on its website that:
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.
For contractors in states that passed restrictions intended to thwart the federal vaccine mandates but that do not have their own individual OSHA plans, the Constitution’s Supremacy Clause once again obligates those contractors to comply with the federal requirement. For those contractors in states with such restrictions that also have state plans, there is no requirement to comply with the federal mandate unless and until those state plans incorporate the requirements of the OSHA ETS.
Emergency Supreme Court Review of the Dissolution of the OSHA ETS Injunction
If the compliance challenge facing government contractors with 100 or more employees was not already complex enough, the plaintiffs in the Sixth Circuit challenge to the OSHA ETS, whose initial challenges were filed in circuit courts across the country and then consolidated at the Sixth Circuit after a lottery, have asked the Supreme Court for an emergency stay of agency action that would prohibit OSHA from enforcing the ETS. Justice Kavanagh oversees emergency requests for relief from the Sixth Circuit and has already directed DOJ to respond to the request by December 30. Given the delay in enforcement issued by OSHA, this likely means that a decision on the motions for an emergency stay will be issued in the first few weeks of 2022.
What Should Contractors Do Now?
How contractors respond to these developments will depend on several factors, such as whether the states in which they operate have their own OSHA plans; whether those states have any restrictions on the vaccine, masking, or testing mandates; and whether the company itself is in favor of requiring its workforce to get vaccinated.
For now, the government contractor vaccine mandate remains mostly dead. And because the Supreme Court could very well issue its decision on the OSHA ETS before January 10, 2022, companies may have the opportunity to delay full compliance efforts with those requirements until that date. But as we stated previously with regard to the government contractor vaccine mandate, it would be prudent for companies with 100 or more employees to be prepared to comply even if they do not intend to begin “good faith” compliance efforts until January 10, 2022.
For additional information about the OSHA ETS or vaccination guidance, please see this post on our HR Law Talk blog.