Do you like superhero movies? If you’re like me, you eagerly await the premieres of the new Spiderman movie this week and the Dr. Strange movie next year, where our heroes are expected to delve into the problem of multiple parallel universes that collide and fray. They’ve got nothing on us — here in reality, we’ve been dealing with something much harder to figure out: the various federal vaccine mandates!
Earlier this year, we saw the promulgation of the Medicare CMS vaccine mandate, which, in turn, was followed by the federal contractor vaccine mandate, which was then followed by the OSHA vaccine mandate. Each of these directives shifted the burden of vaccination compliance to employers, which were left scrambling to develop policies and procedures to deal with the mandate applicable to them. In some cases, more than one mandate might apply to an employer. Employers then had short windows in which to scramble to gear up for compliance.
Not far on the heels of the mandates, a number of states issued executive orders and legislatures passed laws to limit the application of these mandates. Then, in the following weeks, came the judicial intervention — first to be enjoined nationwide was the OSHA vaccine mandate. Next fell the CMS vaccine mandate, as it was enjoined in federal court in Louisiana. A federal district court in Kentucky proceeded to enjoin the federal contractor vaccine mandate in Ohio, Tennessee and Kentucky. A federal district court in Georgia last week implemented a preliminary nationwide injunction against the enforcement of the federal contractor vaccine mandate. Then, only yesterday, Dec. 16, a federal district court in Louisiana issued its own preliminary injunction, although more limited in scope than the prior two injunctions, that enjoins the federal contractor mandate but only with respect to the governments of Louisiana, Mississippi and Indiana, and not with respect to private employers.
The Safer Federal Workforce Task Force, which is responsible for promulgating guidance regarding the application of the federal contractor mandate, acknowledged the recent court decisions in its most recent guidance: “The Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order (hereinafter, ‘Excluded State or Outlying Area’).” Currently, the list of “Excluded States” constitutes all 50 states. Does this mean that the government is throwing in the towel on the federal contractor mandate?
No. The federal government indicated it would appeal the Georgia district court’s injunction to the 11th Circuit. A panel of that court took a dim view of the nationwide preliminary injunction by the Louisiana district court against the CMS vaccine mandate, perhaps a precursor of things to come. Until then, does that mean there is nothing left for a federal contractor to do but wait to see how the appeal turns out?
Again, no. With the injunctions currently in place, those federal contractors that have taken steps to comply with the federal contractor mandate (and those employers that have taken steps to comply with the other vaccine mandates) may need to revisit whether their policies are also compliant with any state law requirements that may be inconsistent with the federal contractor vaccine mandate. For example, some states, like Florida, North Dakota and Texas, require more accommodations, particularly with respect to personal conscience, than the religious and medical accommodations provided under the federal contractor mandate. Other states, like Tennessee and Montana, have restrictions against asking for proof of vaccination or discriminating against an individual based on vaccine status. Thus, an employer that was relying on federalism considerations to trump contrary state requirements does not, at present, have that argument available while the mandates are enjoined — and multiple states are contemplating additional vaccine mandate restrictions.
Although preventing and stopping COVID-19, and recognizing and maintaining individual freedom, are laudable considerations, the way in which the federal government and some of the states have shifted the burden of compliance to employers, rather than the government taking direct responsibility for development and enforcement of social policy, is not. Fortunately, your friendly neighborhood employment lawyer can help navigate this villainy. In the meantime, let’s go to the movies.