On November 16, 2021, 12 additional states – Montana, Alabama, Arizona, Georgia, Idaho, Indiana, Louisiana, Mississippi, Oklahoma, South Carolina, Utah and West Virginia – filed a complaint in the US District Court for the Western District of Louisiana (November 16 Complaint) requesting that the Interim Final Rule with comment period (IFR) that put in place the vaccination mandate applicable to certain covered health care facilities and staff (the CMS Mandate) be declared arbitrary and capricious, contrary to law and in excess of CMS’ statutory authority.
On November 10, 2021, ten states — Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota and New Hampshire (the Plaintiff States) filed a complaint in the US District Court for the Eastern District of Missouri requesting that the Interim Final Rule with comment period (IFR) that put in place the vaccination mandate applicable to certain covered health care facilities and staff (the CMS Mandate) be set aside as an “unlawful agency action under the Administrative Procedure Act” (APA), 5 USC §§ 701–706. This challenge comes on the heels of a similar action by attorneys general against the OSHA Emergency Temporary Standard, which mandates vaccination or testing for employees of companies with 100+ employees (OSHA ETS).
Both the IFR and the OSHA ETS were released on November 5, 2021, as part of the Biden Administration’s multi-prong, “whole of government” approach to combatting the COVID-19 pandemic.
On November 6, 2021, the US Court of Appeals for the Fifth Circuit temporarily blocked the Emergency Temporary Standard (ETS) issued on November 4, 2021, by the Occupational Safety and Health Administration (OSHA) requiring employers with 100 or more employees to implement COVID-19 vaccination policies. The ETS is stayed until further notice, halting its implementation temporarily. While the future of the ETS remains uncertain, employers may want to continue preparing for the ETS as if it is going to take effect while litigation continues.