December 7, 2021

With the deadlines for compliance looming, President Biden’s vaccine mandates suffered a series of setbacks in federal courts last week.
On Monday, November 29, 2021, a federal judge in the Eastern District of Missouri blocked the mandate requiring vaccination of healthcare workers. The Attorneys General representing 10 states had previously filed a Complaint challenging the Centers for Medicare and Medicaid Services (CMS) interim rule that requires most healthcare workers to have received at least the first dose of the COVID-19 vaccine by December 6, 2021. U.S. District Judge Matthew Schelp granted the states’ request for a preliminary injunction pending a full review of the mandate’s legality.
Biden’s mandates suffered additional losses on Tuesday, November 30, 2021, when a federal judge in Louisiana temporarily blocked implementation of the CMS rule. U.S. District Judge Terry Doughty granted a motion for preliminary injunction filed by 14 states seeking to prevent the government from enforcing the mandate. The injunction applies nationwide, except for the 10 states already subject to the order filed in the Eastern District of Missouri.
Just a few hours prior, the mandate aimed at requiring vaccinations for federal contractors was put on hold in three states by a federal judge in the Eastern District of Kentucky. In early November, Kentucky’s Attorney General, joined by Ohio and Tennessee, filed a lawsuit challenging the mandate, which requires all federal contractors and subcontractors to be fully vaccinated by January 18, 2022. U.S. District Judge Gregory Van Tatenhove issued a preliminary injunction temporarily blocking enforcement of the mandate in Kentucky, Ohio, and Tennessee.
These decisions follow a previous ruling by the 5th Circuit Court of Appeals staying enforcement of the vaccine mandate for large employers. On November 12, 2021, the 5th Circuit issued an order prohibiting the Occupational Safety and Health Administration from taking any further steps to implement or enforce its Emergency Temporary Standard (ETS), which requires employees of companies with 100 or more employees to get vaccinated or undergo weekly testing and wear a mask. Calling it “a one-size-fits-all sledgehammer,” the Court described the mandate as simultaneously overbroad in its application to millions of workers across all industries and underinclusive, in that it fails to protect vulnerable workers who are employed by companies with fewer than 100 employees. The Court found that the ETS exceeds the authority granted to OSHA by Congress, noting that OSHA had failed to demonstrate that the COVID-19 pandemic—which has been ongoing for nearly two years—posed the type of “grave danger” required for OSHA to implement an Emergency Temporary Standard. The Court’s Order temporarily stays in the enforcement of the mandate pending a full judicial review.

Tessa Mansfield Hirte 

Attorney - Minneapolis