The U.S. Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Testing Standard (ETS) met its demise at the Supreme Court of the United States on January 13, 2022. That same day, the Court allowed a vaccine rule promulgated by the Centers for Medicare & Medicaid Services (CMS) to enforce its healthcare interim final rule. But what’s the status of Executive Orders (EO) 14042 and 14043, which requires certain federal contractors and all executive-agency federal employees to comply with workplace safety rules, including vaccinations? Here’s an update.
So far, there is no split in the appellate courts that would trigger review of the federal contractor vaccine mandate by the Supreme Court of the United States. On December 17, 2021, the Eleventh Circuit Court of Appeals denied the Biden administration’s appeal seeking to stay the enforcement of a nationwide injunction, which has paused implementation of EO 14042. Within two weeks, the Sixth Circuit Court of Appeals affirmed a similar stay in in Ohio, Kentucky, and Tennessee; the appeal is still pending on the preliminary injunction entered by the lower court. Two appeals have recently been docketed with the Fifth and Eighth Circuits, and there are numerous challenges in the lower courts still percolating.
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