Vaccine Mandate Lawsuits and Court Actions Pending & In Process
From federal agencies and military branches to large private companies, millions of employees have been caught up in the tangle of the Biden administration’s sweeping vaccine mandates. The two controversial orders in question are the Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees (issued in September 2021) and the follow-up “New Vaccination Requirement for Employers With 100 or More Employees” policy (announced in November 2021).
What began as an effort by the White House to increase the number of vaccinated workers has quickly transformed into a litany of legal challenges and outright refusals to comply. While the goal of protecting workers from the spread of a dangerous virus is laudable, many question the legality of what they consider government overreach. As a result, the vaccine mandates are becoming mired in the courts, with employers and workers around the country waiting to see what happens next.
Lawsuits against federal contractor vaccinations
The federal worker vaccine requirement calls for ~4 million federal employees to be fully vaccinated by November 22, 2021. At least 11 states (Alaska, Arkansas, Florida, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming) have challenged the federal mandate because of the impact on federal contractors. Florida led the pack with its lawsuit, followed by a 10-state joint lawsuit filed in the U.S. District Court for the Eastern District, which alleges 12 counts of legal violations. Various lawmakers have slammed the mandate as being “unlawful,” “unconstitutional,” and “an abuse of power.”
Though unrelated to this litigation, federal contractors were shortly thereafter given a deadline extension until January 4, 2022, to get vaccinated. It remains to be seen if the lawsuits will be resolved before that deadline, but the odds seem unlikely.
Lawsuits regarding healthcare worker vaccinations
Another joint lawsuit, filed November 10 from Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming, takes aim at the Centers for Medicare and Medicaid Service’s requirement for healthcare workers to be vaccinated. CMS’ “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination” interim final rule, posted November 5 in the Federal Register, applies to ~76,000 providers.
The speedy legal challenge against the rule notes that CMS’ mandate is “ignoring the facts on the ground and unreasonably dismissing concerns about workforce shortages,” thus putting American lives at risk. It further claims the mandate punishes the “millions” of workers who’ve been on the frontlines of the coronavirus pandemic battle from the beginning.
Large companies fight against workers’ vaccinations
The “New Vaccination Requirement for Employers With 100 or More Employees” mandate orders covered employers “to ensure each of their workers is fully vaccinated or tests for COVID-19 on at least a weekly basis.” The Occupational Safety and Health Administration, placed in charge of overseeing the mandate, promptly issued a COVID–19 Vaccination and Testing; Emergency Temporary Standard.
OSHA’s ETS outlined the organization’s rationale and requirements for covered employers to either require full vaccination for workers by January 4, 2022, or testing plus masking while at work. However, the standard, which went into effect November 5, 2021, met with immediate backlash and has been challenged in court.
A Federal Court of Appeals recently placed the large private employer vaccination order on hold, calling the mandate “fatally flawed” and “staggeringly overbroad.” The legal action does not prevent private companies from instituting their own vaccination policies.
Mine Safety and Health Administration
The Mine Safety and Health Administration (MSHA), a distinct agency from OSHA, has so far refused to adopt the vaccine mandate for businesses under its purview.
MSHA instead noted that Biden’s directive to OSHA simply did not apply to large employers under the mining agency. MSHA further cited that it would comply with worker protections offered under the Federal Mine Safety and Health Act of 1977, while updating its guidelines to ensure mine operators established solid Covid plans.
MSHA’s stance is also in stark disagreement with the underlying rationale behind OSHA’s ETS, which is founded on the presumption that Covid poses a “grave danger” threat. OSHA may issue an ETS if the Secretary of National Consensus Standards “determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”
Pushback against federal military personnel vaccinations
The military branches have each established internal deadlines to ensure compliance by end of the year. So far the Air Force (and subordinate Space Force) passed its November 2 deadline and is facing relatively minimal pushback from servicemembers who have declined to get vaccinated.
Roughly 97% of Active Duty Air Force members have been vaccinated, according to the branch’s official website. Members were given the opportunity to file for medical or religious exceptions, but expectations are low that many religious exemptions will be granted.
The service has taken the unprecedented step of charging military chaplains with “determining the ‘severity of religious conviction’” of thousands of Airmen and Guardians. Members who aren’t approved for an exemption face disciplinary actions or discharge under the Uniform Code of Military Justice, the foundation of the military’s own legal system.
Meanwhile, the Washington Post recently reported that the Marine Corps is looking at a ~10,000 person shortfall by the USMC’s looming November 28 deadline — the largest vaccine resistance numbers of any branch of service. Navy Secretary Carlos Del Toro is committed to “addressing each case on a case-by-case basis,” he told Task & Purpose.
Aside from Active Duty vaccine news, the commander of the Oklahoma National Guard has openly refused to enforce the mandate, asserting that his position “answers to Oklahoma’s Republican Gov. Kevin Stitt who opposes it.” Army Reserve and National Guard units have a vaccination deadline of June 30, 2022, which is far later than active duty components. So, while Oklahoma’s challenge isn’t yet pressing from a legal standpoint, the Pentagon’s response is certainly under the microscope.
