Additional response from some states on government and private vaccine mandates | Small

Some states continue to ban or severely restrict the ability of private employers to require employees to be vaccinated against COVID-19. In just 10 days since our last update, several more states have enacted, or are in the process of enacting, such restrictions. In addition, lawsuits continue to question the mandate of the vaccines for federal contractors (the “vaccine mandate of government contractors”) and the mandate of the vaccines of the Centers for Medicaid and Medicare Services for healthcare workers. (the “CMS Vaccine Mandate”). We have reported on the new law in Florida here. We discuss recent efforts from other states below.

Federal Contractor Vaccine Mandate Lawsuit Updates

• Joint prosecution (7 states): As previously reported, on October 29, 2021, seven states (Alabama, Georgia, Idaho, Kansas, South Carolina, Utah, and West Virginia) filed a lawsuit in the United States District Court for the Southern District of Georgia against the vaccine of the federal contractor. Mandate. The court has set a hearing on these parties’ preliminary injunction requests for December 3, before Judge R. Stan Baker.

• Pursuit in Arizona. In September 2021, Arizona filed a lawsuit against the Federal Government Contractor Vaccine Mandate and OSHA’s Federal Vaccine or Emergency Testing Regulations (the “ETS”) in the United States District Court for the District of Arizona. On October 22, Arizona filed an amended complaint and renewed its motion for a temporary restraining order and preliminary injunction. In a setback for Arizona’s efforts to overturn federal demands, on Nov. 10, Judge Michael Liburdi denied the state’s request for a temporary injunction and a preliminary injunction.

• Florida lawsuit. As previously reported, on October 28, 2021, Florida filed a lawsuit with the U.S. District Court for the Central District of Florida, seeking a preliminary injunction against the federal contractor’s vaccine mandate. The court has set a hearing on the case for December 7 before Judge Steven Merryday.

CMS Immunization Mandate Lawsuits

• Joint prosecution (10 states): On November 10, 2021, 10 states (Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming) filed a lawsuit in US District Court for the Eastern District of Missouri, challenging CMS’s vaccination mandate for healthcare workers. The lawsuit alleges violations of the Administrative Procedure Act (APA), Social Security Act, 42 USC § 1395z, 42 USC § 1302, and constitutional violations.

• Joint prosecution (12 states): On November 15, 2021, 12 states (Alabama, Arizona, Georgia, Idaho, Indiana, Louisiana, Mississippi, Montana, Oklahoma, South Carolina, Utah and West Virginia) also filed a lawsuit challenging CMS’s vaccination mandate for health care workers in the United States District Court for the Western District of Louisiana. This lawsuit presents arguments similar to the 10-state lawsuit discussed above.

• Florida lawsuit: On November 18, 2021, Florida also challenged CMS’s vaccination mandate for healthcare workers, filing a lawsuit in U.S. District Court for the Northern District of Florida. The Florida lawsuit mainly alleges constitutional violations and also presents APA arguments. On November 20, 2021, Judge Mr. Casey Rodgers dismissed Florida’s petition for a temporary restraining order or preliminary injunction.

Further legislative push from the state

North Dakota Legislation: On November 15, 2021, North Dakota Governor Burgum signed a law (HB 1511) expanding the reasons an employee, potential employee or contractor can avoid an employer mandate to receive the COVID-19 vaccination in – beyond the exemptions provided for by the federal government. and the State of North Dakota Anti-Discrimination Act. New North Dakota law allows individuals to avoid vaccination by 1) submitting proof of COVID-19 antibody, which is valid for six months from the date of the antibody test, 2) undergoing a test instead of vaccination, 3) submitting a certification from a health care provider that the vaccine would “endanger the life or health” of the person, or 4) submitting a certificate stating that their “religious, philosophical beliefs or legal entities ”oppose vaccination. Notably, and unlike recent legislation in Alabama, Arkansas, and Tennessee, North Dakota law does not not apply to entities required to comply with federal immunization law, rules or guidelines. North Dakota law also prohibits private companies from requiring bosses, clients or clients to provide vaccination or antibody documentation to access services, with a few exceptions.

Tennessee legislation: As previously reported, on November 2, 2021, the Tennessee Legislature passed House Bill 9077 / Senate Bill 9014, which effectively bans vaccine mandates for government and private company employees, which was enacted by Governor Lee November 12. It should be noted that the CMS Vaccine Mandate takes precedence over this Tennessee state law, although it is not clear whether Tennessee will recognize this preemption. Tennessee law provides a mechanism for companies that would suffer a “loss of federal funding” if they complied with Tennessee law (for example, by not complying with the federal mandate for vaccines) to apply for an exemption in Tennessee Comptroller. Guidelines for the exemption program and how to request an exemption are available here.

Texan litigation: As previously reported, Texas Governor Abbott issued Executive Order GA-40 in October 2021, allowing employees subject to a warrant of vaccination by their employer to obtain an exemption for medical or religious reasons, as well as for reasons of “personal conscience”. The meaning of the reference to “personal consciousness” remains uncertain. On November 15, 2021, Governor Abbott filed a complaint with the United States Court of Appeals for the Fifth Circuit challenging federal OSHA ETS / vaccine or test regulations, and asking the Fifth Circuit to confirm that OSHA ETS no. does not take precedence over Governor Abbott. Executive Decree. Texas is already a party to other federal OSHA ETS challenges that have been consolidated in the United States Court of Appeals for the Sixth Circuit.

Utah Legislation: On November 16, 2021, Utah Governor Cox enacted a bill (SB 2004) expanding the reasons an employee can use to avoid an employer’s mandate to get a COVID vaccine- 19. Utah’s new law requires employers to provide exemptions from a vaccination warrant if an employee or potential employee submits a statement to the employer stating that receiving the COVID-19 vaccine would be: “(a) would be detrimental the health and well-being of the employee or potential employee; (b) conflict with a sincere religious belief, practice or observance of the employee or prospective employee; or (c) conflict with a sincere personal belief of the employee or potential employee. In addition, the law requires employers to pay for COVID-19 tests for employees and prohibits employers from keeping or keeping a record or a copy of an employee’s proof of vaccination, except as required by law. otherwise, an established business practice or industry standard or, in the case of a contract for goods or services (no employment), entered into before November 5, 2021. Presumably, the provision for record keeping in the case of a contract concluded before November 5 concerns contracts which require the retention of proof of vaccination, but the law is not clear on this point. Employers subject to the Federal Contractor Vaccine Mandate are not subject to this Utah law, nor are employers subject to the CMS Vaccine Mandate, including academic medical centers.

Wyoming Law: On November 12, 2021, Governor of Wyoming Gordon enacted House Bill 1002 which, in part, prohibits any public entity from enforcing “any federal government mandate or standard … which requires an employer to guarantee or require that” employee receives COVID-19 vaccination. This prohibition is only enforceable so long as such a federal standard is “subject to a federal judicial suspension applicable in Wyoming, or is otherwise revoked, withdrawn, replaced or declared illegal or unenforceable by a federal court of competent jurisdiction” – in an apparent nod to the Federal OSHA ETS stay in the Fifth Circuit. The law also provides state funding for the Wyoming litigation challenging the various federal vaccine mandates.

As these state lawsuits and legislative efforts continue to proliferate and become more complex by the day, companies with employees in these states who have already implemented a mandatory vaccination policy or are considering doing so should assess. effect of these laws and seek legal advice. to ensure compliance. In a growing number of these states, compliance with both the Federal Contractor Vaccine Mandate or CMS Vaccine Mandate and the new state law may not be possible, in which case a company must review its options and assess its risks. . Littler will continue to monitor these legislative, judicial and regulatory actions and will provide periodic updates on these evolving standards.