Court Rulings Partially Revive Healthcare Mandate, Create Additional Intrigue for Employer Mandate

Brooke A. Colaizzi

The ongoing saga of the various vaccine mandates issued by the federal government continued this week, with new rulings shifting the fault lines but providing no long-term answers.

On December 15th, the Fifth Circuit Court of Appeals in New Orleans upheld a Louisiana federal district judge’s order freezing the vaccine mandate for healthcare workers in the 14 states that participated in the original challenge in Louisiana.  However, the Fifth Circuit reversed the district judge’s nationwide injunction.  A federal district court in Missouri previously stayed the mandate in the 10 states that challenged the mandate in Missouri.  Therefore, the healthcare vaccine mandate remains stayed in 24 states including Arizona, but it is not stayed—and therefore can be enforced—in the remaining 26 states, including Colorado.

As for the vaccine mandate for employers, the OSHA ETS, all eyes remain on the Sixth Circuit, charged with the task of determining the mandate’s enforceability.  On December 15th the Court denied petitions for initial en banc review—or review by the entire slate of active Sixth Circuit judges—meaning a panel of three judges will initially decide the case.  Of the active judges on the Sixth Circuit, 11 were appointed by Republication presidents, and five were appointed by Democratic presidents.  Therefore, the composition of the three-judge panel could have significant implications for the eventual fate of the mandate.

UPDATE 12/23:  In a pair of Orders issued Wednesday, the Supreme Court of the United States announced that it will hold separate oral arguments on January 7, 2022 regarding the enforceability of the OSHA ETS and healthcare worker and vaccine mandates.  The OSHA ETS is currently enforceable nationwide following the Sixth Circuit’s Order on December 17 lifting a stay of the ETS imposed earlier by the Fifth Circuit.  The Supreme Court denied petitions to stay the enforcement of the OSHA ETS while the Supreme Court reviews it.  The healthcare mandate is currently stayed in 24 states (including Arizona) but enforceable in the remaining 26 states (including Colorado) after rulings by the Eighth Circuit and Fifth Circuit Courts of Appeals. 

Employers should continue to prepare for compliance with mandates as they await the Supreme Court’s rulings.