Tens of millions of workers across the U.S. are in limbo as federal courts have put President Joe Biden’s COVID-19 vaccine mandates affecting private companies largely on hold.
On Wednesday, a federal appeals court panel lifted a nationwide ban against the administration’s vaccine mandate for health care workers, creating the potential for patchwork enforcement across the country. Vaccine mandates covering companies with at least 100 employees and those that have contracts with the federal government also are held up in the courts.
The courts are responding to lawsuits brought by Republican-led states, businesses and other opponents. Numerous other legal challenges are pending, some involving groups of states and others filed by states acting alone.
The rulings have led vaccine mandates to be halted at some large employers. They include Michigan Medicine, the academic medical center of the University of Michigan, the three largest state universities in Kansas and the city of Phoenix.
Despite other legal challenges, separate Biden administration vaccine mandates for federal government employees and the military remain in effect, as do mask requirements for airline passengers and people using public transportation.
The legal cases concern whether the federal government can force employers to require vaccinations. Courts have generally been accepting of requirements that businesses and universities have put in place on their own — as well as those imposed by state and local governments.
More than four-fifths of adults nationwide already have received at least one dose of a COVID-19 vaccine. But Biden contends his various workforce vaccine mandates are an important step to drive up vaccination rates and containing the virus outbreak, which has killed more than 800,000 people in the U.S.
Opponents have taken a three-tiered approach to challenging the requirements. In lawsuits, they contend the vaccine mandates were imposed without proper public comment, were not authorized by Congress and infringe on states’ rights to regulate public health matters.
“The reasoning across the cases is basically the same, which is that these statutes don’t give the president or the agency in question the authority to issue the mandates,” said Gregory Magarian, a constitutional law professor at Washington University in St. Louis.
The Biden administration contends its rule-making authority is firm and supersedes any state policies prohibiting vaccine requirements. Recent experience shows that such mandates generally prompt people to get vaccinated: By the time a Biden requirement for federal workers to be vaccinated took effect last month, 92% had received at least their first dose of the shot.
Following is a rundown of some of Biden’s most sweeping vaccine requirements and the status of the legal fights over them.
LARGE BUSINESS MANDATE
What it would do: Under a rule published by the U.S. Occupational Safety and Health Administration on Nov. 5, businesses with 100 or more workers are to require employees to be vaccinated. If they are not, they would need to be tested weekly and wear masks while working, with exceptions for those who work alone or mostly outdoors. The rule was to go into effect Jan. 4. The requirement would affect businesses with a cumulative 84 million employees, and OSHA projected it could save 6,500 lives and prevent 250,000 hospitalizations over six months.
Who’s challenging it: The requirement is being challenged by 27 Republican-led state governments plus conservative and business groups and some individual businesses. The states mostly filed lawsuits in groups, though Indiana challenged it alone. Their arguments include that it’s the job of states, not the federal government, to deal with public health measures. The Biden administration maintains that the measure is legal. Some labor unions also contested the rule, though not for the same reasons as the Republicans and business group. They say it doesn’t go far enough to protect workers.
Where it stands: The rule is on hold. A day after states challenged the rule, a panel of three judges in the New Orleans-based 5th U.S. Circuit Court of Appeals blocked it. At first, it was a temporary suspension, then a more permanent one. The legal challenges originally were filed in various U.S. appeals courts. The cases subsequently were consolidated into a court that was selected at random, the Cincinnati-based 6th U.S. Circuit Court of Appeals.
What’s next: The Biden administration is asking the 6th Circuit to set aside the order from the 5th Circuit and allow the vaccine requirement. In the meantime, OSHA has suspended implementation of the rule. A divided 6th Circuit ruled Dec. 15 that the matter would be considered by a three-judge panel rather than all the judges on the court, as the Republican states and their allies had requested.
HEALTH WORKER MANDATE
What it would do:: Under a rule published by the Centers for Medicare & Medicaid on Nov. 5, a wide range of health care providers that receive federal Medicare or Medicaid funding were to require workers to receive the first dose of a COVID-19 vaccine by Dec. 6 and be fully vaccinated by Jan. 4. The rule would affect more than 17 million workers in about 76,000 health care facilities and home health care providers.
Who’s challenging it: The rule was challenged in four separate lawsuits filed by Republican-led states, mostly in groups. Florida and Texas mounted their own challenges. The states argued that there were no grounds for an emergency rule, that CMS had no clear legal authority to issue the mandate and that the rule infringes on states’ responsibilities.
Where it stands: The rule is on hold nationally, but a ruling Dec. 15gives it the possibility of moving ahead in about half the states. A Missouri-based federal judge issued a preliminary injunction Nov. 29 barring its enforcement in 10 states that had originally sued. The next day, a Louisiana-based federal judge also issued a preliminary injunction barring enforcement in the rest of the states. But on Dec. 15, that was narrowed to the 14 suing in that court. And on Dec. 16, a federal judge in Texas granted an injunction that applies only to that state. After the decisions, there is a possibility the mandate could be enforced in 25 states where no injunction is in place. The Centers for Medicare & Medicaid have not said whether they will pursue that path.
What’s next: Both court rulings are being appealed by the Biden administration. The case filed in Missouri is being considered by the St. Louis-based 8th U.S. Circuit Court of Appeals. The case filed in Louisiana, which was brought by a coalition of 14 states, is being considered by the 5th Circuit. So far, there’s been no move to consolidate the challenges in a single court.
FEDERAL CONTRACTOR MANDATE
What would it do: Under an executive order issued by Biden on Sept. 9, contractors and subcontractors for the federal government are required to comply with workplace safety guidelines developed by a federal task force. That task force subsequently issued guidelinesrequiring that new, renewed or extended contracts include a clause requiring employees to be fully vaccinated Jan. 18. That meant those receiving a two-dose vaccine must get their second shot by Jan. 4. There are limited exceptions for medical or religions reasons. The requirements could apply to millions of employees.
Who’s challenging it: The guidelines have been challenged through more than a dozen lawsuits, including seven brought by Republican-led states or coalitions of states. The arguments are similar to those against other vaccine mandates, asserting the Biden administration exceeded the procurement rule-making powers granted by Congress, infringed on states’ responsibilities and didn’t properly gather public comment.
Where it stands: The rule is on hold. A federal judge in Georgia issued a ruling Dec. 7 prohibiting enforcement of the requirement for contractors nationally. The ruling came a week after a judge in Kentucky barred enforcement of the requirement in Kentucky, Ohio and Tennessee.
What’s next: Legal challenges pending in several other states could lead to additional rulings on requests for injunctions. The Kentucky or Georgia rulings also could be appealed.
A quick consolidation of the federal contractor lawsuits appears unlikely.
Health worker vaccine mandate blocked in half the states
NEW ORLEANS (AP) — A federal appeals court panel on Wednesday lifted a nationwide ban against President Joe Biden’s vaccine mandate for health care workers, instead blocking the requirement in only certain states and creating the potential for patchwork enforcement across the country.
The decision by the New Orleans-based 5th U.S. Circuit Court of Appeals kept a preliminary injunction in place for 14 states that had collectively sued in federal court in Louisiana. It altered a Nov. 30 ruling by U.S. District Judge Terry Doughty, who originally applied his order nationwide.
A separate preliminary injunction on appeal before the St. Louis-based 8th U.S. Circuit Court of Appeals applies to 10 additional states. That means the vaccine requirement for Medicare and Medicaid providers is blocked by courts in about half states but not in the other half.
“This vaccine rule is an issue of great significance currently being litigated throughout the country. Its ultimate resolution will benefit from ‘the airing of competing views’ in our sister circuits,” the ruling from three 5th Circuit judges said.
At issue is a rule published Nov. 5 by the Centers for Medicare & Medicaid that applied to a wide range of health care providers that receive federal Medicare or Medicaid funding. It required their workers to receive the first dose of a COVID-19 vaccine by Dec. 6 and be fully vaccinated by Jan. 4. It was projected to affect more than 17 million workers in about 76,000 health care facilities as well as home health care providers.
The agency said on Dec. 2 that it would not enforce the vaccine rule while court injunctions were in place. It was not immediately clear Wednesday whether the agency would continue to suspend the rule for all states or seek to go ahead with it in states no longer subject to the injunctions.
About 85% of adults nationwide already have received at least one dose of a COVID-19 vaccine. But Biden contends his various workforce vaccine mandates are an important step to drive up vaccination rates and contain the virus outbreak, which has killed about 800,000 people in the U.S.
Courts that have blocked the mandates for health workers, federal contractors and medium- to-large-sized businesses all have said the Biden administration likely exceeded the executive powers spelled out in law. The administration has continued to say it is on firm legal ground.
In upholding Doughty’s injunction for the states that sued, the 5th Circuit panel said it appears likely that opponents of the health worker vaccine mandate will prevail as the case moves through the courts. However, the panel also said there are significant differences between the health care vaccine mandate and another vaccine mandate — blocked previously in a separate ruling upheld by the 5th Circuit — that applied to all businesses employing more than 100 people.
Among the key differences, the court said, is that “the targeted health care facilities, especially nursing homes, are where COVID-19 has posed the greatest risk.”
Wednesday’s 5th Circuit ruling was issued by judges Leslie Southwick, nominated to the court by President George W. Bush; and James Graves and Gregg Costa, both nominated by President Barack Obama.
The 5th Circuit decision blocks the health worker vaccine mandate in Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah and West Virginia. The separate case pending before the 8th Circuit blocks the mandate in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.
Also Wednesday, the Cincinnati-based U.S. 6th Circuit Court of Appeals said a three-judge panel — rather than the entire court — would rule on a challenge to the Biden administration’s mandate that all private employers with at least 100 workers require them to be vaccinated or wear masks and face weekly tests.
That decision is a victory for the Biden administration, which had pushed back against efforts to have all the judges in the panel initially involved. Eleven of the 16 full-time judges in the 6th Circuit were appointed by Republicans.
The vote in the 6th Circuit was split, with eight judges wanting the entire panel to hear the case and eight wanting it to stay with three judges. Judge Karen Nelson Moore wrote that the three-judge panel already has devoted time to the case and switching now would “subvert our normal process.”
Chief Judge Jeffrey Sutton disagreed, arguing in a dissent, “there is something to be said for putting all hands on deck, particularly when it comes to handling the stay motion.” In his dissent, he laid out a case against the administration’s authority to issue the mandate.
At least for now, the earlier ruling from the 5th Circuit remains in place and the broader business vaccine mandate is on hold nationwide. The federal government has asked for that order to be dissolved. Determining which judges will decide that issue could set the stage for a ruling in the matter.
___
Lieb reported from Jefferson City, Missouri. Associated Press writer Geoff Mulvihill in Cherry Hill, New Jersey, contributed to this report.