Victories Against Vaccine Mandates. Where it stands.
Multiple federal courts are addressing challenges to the Biden administration’s COVID-19 vaccine mandates. Opponents to the mandates have scored victories against the CMS healthcare mandate, the OSHA mandate, and the federal contractor mandate. But the battle is not over.
Federal courts have issued a preliminary injunction against these mandates pending further review. With so much litigation there is the possibility a federal court in a different part of the country will reach a different conclusion but these are fantastic first steps. Also, expect rulings to be appealed to the U.S. Supreme Court.
What vaccine mandates have been enjoined and what does it mean?
CMS mandate on hospitals and healthcare facilities
The federal Centers for Medicare and Medicaid Services (CMS) issued a rule requiring hospitals and other health facilities to show its workers have received the COVID-19 vaccines as a condition for receiving federal funds.
On November 29 a federal district court in Missouri issued a preliminary injunction to stop enforcement of the CMS rule.[i] The issuance of a preliminary injunction means the judge thinks the plaintiffs are likely to win at trial and the injunction is necessary to avoid harm. The ruling only applied to ten states but Arkansas was one of the states thanks to Attorney General Leslie Rutledge joining in the lawsuit, the ruling also applies in Arkansas.
Then on November 30 a federal district court in Louisiana also issued a preliminary injunction against the CMS rule and this time it applies to all fifty states.[ii]
Because of the court’s preliminary injunction some hospitals and health care facilities have announce they are suspending their efforts to comply with the federal mandate. Arkansas Methodist Medical Center is an example of one announcing it is not currently enforcing the vaccine mandate as it waits on the outcome of the litigation.
UAMS was quick to announce it is suspending its effort to impose the federal vaccine mandate. But UAMS didn’t really have a choice. UAMS is a state controlled institution and must comply with an Arkansas law (Act 977 of 2021) adopted earlier this year which prohibits state agencies and state-controlled institutions from imposing a vaccine mandate unless granted an exemption from the law by the Legislative Council, which is a committee of the Arkansas legislature. Because of this law, the Department of Human Services also dropped its vaccine mandate which would have included Arkansas’ five human development centers, the State Hospital, and the Arkansas Health Center.
But not all hospitals are putting vaccine mandates on hold. Even before the CMS rule, some Arkansas hospitals-imposed vaccine mandates on their own initiative and have terminated some unvaccinated employees. Even if the CMS mandate is ultimately stricken down, those hospitals may not lift their own mandates.
OSHA federal mandates
The Biden Administration directed the federal agency Occupational Safety and Health Administration (OSHA) to impose a vaccine mandate on businesses with one hundred or more employees. On November 12, the federal Fifth Circuit Court of Appeals issued a temporary stay blocking enforcement of the OSHA mandate.[iii] Because there was ongoing litigation in other circuits the Sixth Circuit Court of Appeals was chosen to review the cases. The Biden administration is asking the Sixth Circuit to dissolve the stay issued by the Fifth Circuit.
Mandate on federal contractors
The latest injunction against enforcement of part of the Biden mandates concerns federal contractors. The rule requires federal contractor to ensure their employees are vaccinated as a condition for doing business with a federal agency. For example, if you want to sell toilet paper to the federal government the mandate would mean your workforce would have to be vaccinated.
On November 30 a federal district court in Kentucky issued an injunction against the federal contractor mandate.[iv] The order applies in Kentucky, Ohio, and Tennessee.
Attorney General Leslie Rutledge has joined similar litigation in another state and a decision is expected soon on that challenge.
Non-federal mandates.
Some businesses have imposed their own vaccine mandates on their workforce. In Arkansas Tyson, Walmart, and some hospitals have been in the news for terminating unvaccinated employees and imposing draconian restrictions on employees who dare claim a medical or religious exemption from the vaccine.
The Arkansas legislature is to be commended for passing Act 1113 and Acts 1115 to give relief to some Arkansans. The law says an employee is exempt from a vaccine mandate if the employee can show he or she acquired natural immunity. Unfortunately, the new Arkansas law will not become effective until sometime in January, which is too late for employees facing deadlines before then.
Conduit’s sister organization, Arkansas Economic Defense Fund (AEDF) has been working to assist workers who have been fired or who have been granted a medical or religious exemption but who face discrimination because of severe workplace restrictions. AEDF has partnered with attorney Brian Vandiver.
Learn more about our effort to assist workers see: Arkansas Economic Defense Fund Know Your Rights. This link includes a form for requesting legal help through the Arkansas Economic Defense Fund.
[i] State of Missouri et al. v. Joseph R. Biden Jr. https://ago.mo.gov/docs/default-source/press-releases/cms-injunction.pdf?sfvrsn=ed822d9d_2
[ii] State of Louisiana et al. v. Xavier Becerra et al. https://www.alabamaag.gov/Documents/news/CMS%20Nationwide%20Injunction.pdf
[iii] State of Louisiana et al. v. Xavier Becerra et al. https://www.ca5.uscourts.gov/opinions/pub/21/21-60845-CV0.pdf
[iv] Commonwealth of Kentucky, et al. v. Joseph R. Biden https://ag.ky.gov/Press%20Release%20Attachments/DN%2050%20OPINION%20AND%20ORDER%20granting%20PI.pdf
