Response to Federal Vaccine Mandates

As of January 2022, the federal government has issued a series of COVID-19 vaccine mandates affecting federal contractors, private sector employees, healthcare workers, and Head Start Programs.

Attorney General Herbert H. Slatery III, alongside state attorneys general around the country who share similar constitutional concerns about these mandates, is challenging the unprecedented reach of the federal government and seeking to stop enforcement.

The Tennessee Attorney General’s Office is leading groups of states in litigation against two of the federal mandates:  the vaccine mandate through OSHA for private sector employees and the vaccine mandate for federal contractors.  General Slatery has also joined other state attorneys general in litigation against the Head Start mandate.  

OSHA VACCINE MANDATE:

November 4, 2021
The Biden Administration announces new vaccination policies, including a COVID-19 vaccination mandate for private sector employees through the Occupational Safety and Health Administration (OSHA).

November 5, 2021
General Slatery and six other attorneys general file a lawsuit before the U.S. Court of Appeals for the Sixth Circuit challenging the mandate.

November 12, 2021
The U.S. Court of Appeals for the Fifth Circuit grants a motion to stay OSHA’s Emergency Temporary Standard (ETS) and ordered that OSHA take no steps to implement or enforce the ETS until further court order.

The U.S. Court of Appeals for the Sixth Circuit now has jurisdiction over the ETS challenges, and the Department of Labor has filed a motion to lift the stay. OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

December 17, 2021
The U.S. Court of Appeals for the Sixth Circuit dissolves a ruling by the Fifth Circuit in New Orleans that had but the OSHA rule on hold.

December 18, 2021
Tennessee and 26 other states file an application with the U.S. Supreme Court to stay the mandate.

December 22, 2021
The U.S. Supreme Court grants oral argument on the stay application.  Oral argument will take place on January 7, 2022—the same day as oral argument in the CMS vaccine mandate cases.

January 13, 2022
The U.S. Supreme Court grants Tennessee and 26 other states’ request to stay the mandate describing the vaccine-or-test requirement as a “significant encroachment into the lives- and health-of a vast number of employees.”

If the federal government decides to continue defending this mandate, the vaccine-or-test mandate will remain on hold while the challenges to its legality continue in the U.S. Court of Appeals for the Sixth Circuit.

January 19, 2022
General Slatery and 26 other states file a comment letter with OSHA requesting the federal government withdraw the ETS and suspend efforts to promulgate a similar permanent standard in light of the U.S. Supreme Court’s decision staying the ETS.

To read the letter, click here: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/foi/vaccines/proposed-rule-comments.pdf

January 25, 2022
Following the victory of Tennessee and 26 other states at the U.S. Supreme Court, OSHA agreed to withdraw the ETS vaccine mandate.  OSHA is instead treating this as a proposed rule subject to the normal notice-and-comment rulemaking process.  The rule is not in force during the notice-and-comment process.

February 18, 2022
The Sixth Circuit dismissed the case as moot following OSHA’s withdrawal of the ETS. 

FEDERAL CONTRACTOR MANDATE:

September 9, 2021
President Biden issues an Executive Order mandating COVID-19 vaccination for employees of federal contractors and subcontractors.

November 4, 2021
General Slatery, along with the attorneys general of Ohio and Kentucky, challenges the mandate in the United States District Court for the Eastern District of Kentucky.

November 30, 2021
A U.S. District Court in Kentucky stops the federal government from enforcing the vaccine mandate for federal contractors and subcontractors in Kentucky, Ohio, and Tennessee.

December 7, 2021
A federal judge in Georgia blocks enforcement nationwide saying the Biden Administration lacked authority under federal procurement law to issue the executive order that established the mandate in the first place.

January 5, 2022
The U.S. Court of Appeals for the Sixth Circuit denies the federal government’s request to stay the district court’s injunction of the vaccine mandate for federal contractors in Kentucky, Ohio, and Tennessee.

CMS VACCINE MANDATE (HEALTHCARE WORKERS):

November 4, 2021
Along with the OSHA Vaccine Mandate, the Biden Administration announces a requirement that health care workers at facilities participating in Medicare and Medicaid are fully vaccinated.

November 29, 2021
A federal district court in Missouri issues a preliminary injunction blocking the implementation and enforcement of the CMS mandate limited to the ten plaintiff states that filed a lawsuit November 10th, 2021.

November 30, 2021
A nationwide injunction is issued by the United States District Court for the Western District of Louisiana. The Court enjoined the CMS vaccine mandate in every state including Tennessee.

December 15, 2021
The U.S. Court of Appeals for the Fifth Circuit stays the nationwide injunction put in place by the Western District of Louisiana narrowing the injunction to just the 14 plaintiff states.

December 22, 2021
The U.S. Supreme Court grants oral argument in both the Missouri and Louisiana CMS cases.  Oral argument will take place on January 7, 2022—the same day as oral argument in the OSHA vaccine mandate cases.

December 28, 2021
CMS issues guidance directing that Medicaid and Medicare providers in states where the preliminary injunction is not in effect should require that employees receive the first dose of the COVID-19 vaccine within 30 days and the second dose within 60 days.

January 13, 2022
The U.S. Supreme Court allows the Biden administration to temporarily enforce its requirement for nearly all health care workers at facilities that participate in the Medicare and Medicaid programs to be fully vaccinated against COVID-19 unless they qualify for an exemption. The stay is in effect while the district court considers the merits of the challenge.

February 4, 2022
Tennessee and 15 other states file a motion to file an amended complaint challenging the CMS vaccine mandate in federal district court.

February 9, 2022
The federal district court issued a rare “indicative ruling” stating that it would allow the amended complaint but for its concern over jurisdictional questions involving the U.S. Court of Appeals for the Fifth Circuit who had not yet set the case back (remand) to district court.

February 11, 2022
The Louisiana coalition files an emergency motion in the Fifth Circuit requesting the court remand the case, however a three-judge panel of the court declines to do so.

February 13, 2022
The Louisiana coalition files a petition asking the entire Fifth Circuit (en banc) consider the motion requesting the case be remanded to federal district court.

HEAD START MANDATE:

November 30, 2021
The Biden administration requires masks for toddlers and COVID-19 vaccination for staff and volunteers of Head Start Programs.

December 21, 2021
Tennessee joins a multistate lawsuit challenging those requirements.

January 1, 2022
The United States District Court for the Western District of Louisiana grants a preliminary injunction preventing enforcement of the Head Start Mandate in the 24 Plaintiff States (including Tennessee).