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As Anticipated, Federal Judiciary Brings Clarity to Unconstitutional COVID-19 Vaccine Mandates by Biden Administration, and Saves Thousands of Jobs in the Process Your Trusted Legal Advisors Schedule a Consultation
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As Anticipated, Federal Judiciary Brings Clarity to Unconstitutional COVID-19 Vaccine Mandates by Biden Administration, and Saves Thousands of Jobs in the Process

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This year, our law firm has provided countless hours of legal advice to employers and employees regarding “mandatory COVID-19 vaccines” in the workplace, many of which were provided pro bono, to both employers and employees. During a recent employment webinar, I projected that federal judges around the country will intervene and rule that the COVID-19 vaccine mandates, through various agencies of the Biden Administration, were unconstitutional. It appears that I was correct, and that the recent rulings by the federal judiciary in the past few weeks are the “beginning of the end” of mandatory COVID-19 vaccines in the workplace.

Georgia v. Biden

On December 7, 2021, U.S. District Judge R. Stan Baker rendered an opinion in the United States District Court for the Southern District of Georgia, Augusta Division, in the case of Ga. v. Biden. The Plaintiffs, “the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia; the governors of several of those states; and various state agencies, including the Board of Regents of the University System of Georgia, filed [] suit seeking declaratory and injunctive relief against enforcement of Executive Order 14042, which requires, inter alia, that contractors and subcontractors performing work on certain federal contracts ensure that their employees and others working in connection with the federal contracts are fully vaccinated against COVID-19.” See Georgia v. Biden , No. 1:21-cv-163, 2021 U.S. Dist. LEXIS 234032, at *2 (S.D. Ga. Dec. 7, 2021.) “Upon filing the lawsuit, Plaintiffs requested that [the] Court issue a preliminary injunction.” Id.

Moreover, Associated Builders and Contractors, Inc. [“ABC”] and Associated Builders and Contractors of Georgia, Inc. [“ABC-Georgia”] “filed a Motion to Intervene in the action, [] and also filed their own Motion for Preliminary Injunction”. Id. at *2-3. The Court ultimately granted Plaintiffs’ Amended Motion for Preliminary Injunction and ABC’s Motion for Preliminary Injunction, finding that “Plaintiffs will likely succeed in their claim that the President exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act when issuing Executive Order 14042.” Id. at *4. As such, “the Court [Ordered] that Defendants are [enjoined], during the pendency of [the] action or until further order of [the] Court, from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.” Id. at *39.

Missouri v. Biden

On November 29, 2021, U.S. District Judge Matthew T. Schelp rendered an opinion in the United States District Court for the Eastern District of Missouri, Eastern Division, in the case of Missouri v. Biden, granting Plaintiffs’ Motion for Preliminary Injunction. “[The] case concern[ed] the Centers for Medicare and Medicaid Services’ (“CMS”) federal vaccine mandate on a wide range of healthcare facilities.” See Missouri v. Biden , No. 4:21-cv-01329-MTS, 2021 U.S. Dist. LEXIS 227410, at *3 (E.D. Mo. Nov. 29, 2021.)

The Court indicated that:

On November 5, 2021, CMS issued an Interim Final Rule with Comment Period (“IFC”) entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination” (the “mandate”), 86 Fed. Reg. 61,555 (Nov. 5, 2021), revising the “requirements that most Medicare- and Medicaid-certified providers and suppliers must meet to participate in the Medicare and Medicaid programs.” Specifically, the mandate requires nearly every employee, volunteer, and third-party contractor working at fifteen categories of healthcare facilities to be vaccinated against SARS-CoV-2 (“COVID”) and to have received at least a first dose of the vaccine prior to December 6, 2021.

See Missouri v. Biden , No. 4:21-cv-01329-MTS, 2021 U.S. Dist. LEXIS 227410, at *3 (E.D. Mo. Nov. 29, 2021)(internal citations omitted).

As such, “[o]n November 10, 2021, Plaintiffs, the States of Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire [] filed a Complaint challenging the mandate”, seeking “preliminary and permanent injunctive and declaratory relief.” See Missouri v. Biden , No. 4:21-cv-01329-MTS, 2021 U.S. Dist. LEXIS 227410, at *3-4 (E.D. Mo. Nov. 29, 2021.) Thereafter, “[o]n November 12, 2021, Plaintiffs filed a motion for a preliminary injunction, [] requesting that [the] Court issue a preliminary injunction enjoining Defendants from imposing the mandate. Id. at *4.

In granting Plaintiffs’ Motion for Preliminary Injunction, the Court Ordered “that Defendants are preliminarily enjoined from the implementation and enforcement of 86 Fed. Reg. 61,555 (Nov. 5, 2021), the Interim Final Rule with Comment Period entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination,” against any and all Medicare- and Medicaid-certified providers and suppliers within the States of Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming pending a trial on the merits of this action or until further order of this Court.” Id. at *43 (E.D. Mo. Nov. 29, 2021.) Then, on December 1, 2021, the Court denied Defendants’ Motion to Stay Pending Appeal. See Missouri v. Biden , No. 4:21-cv-01329-MTS, 2021 U.S. Dist. LEXIS 229296, at *5 (E.D. Mo. Dec. 1, 2021.)

Louisiana v. Becerra

Similarly, in the United States District Court for the Western District of Louisiana, Monroe Division, in the case of Louisiana v. Becerra, the Court indicated in its November 30, 2021 Opinion that “[t]he issue before [the] Court [was] whether the Plaintiff States [were] entitled to a preliminary injunction against the Government Defendants as a result of a COVID-19 CMS vaccine mandate (“CMS Mandate”) implemented by the Government Defendants on November 5, 2021.” See Louisiana v. Becerra , No. 3:21-CV-03970, 2021 U.S. Dist. LEXIS 229949, at *1-2 (W.D. La. Nov. 30, 2021)(citing 86 Fed. Reg. 61555-01.) The Court ruled that “[i]mplicit in determining whether a preliminary injunction should be granted is determining whether the Government Defendants have the statutory and/or constitutional authority to implement the CMS Mandate”, and ultimately “[f]inding that the Government Defendants do not have the authority to implement the CMS Mandate”, the Court “[granted] Plaintiff States’ Motion for Preliminary Injunction [] and [immediately enjoined] and [restrained] the Government Defendants from implementing the CMS Mandate.” Id. at *2-3. The Court indicated that “the scope of this injunction will be nationwide, except for the states of Alaska, Arkansas, Iowa,

Kansas, Missouri, New Hampshire, Nebraska, Wyoming, North Dakota, South Dakota, since these ten states are already under a preliminary injunction order dated November 29, 2021, out of the Eastern District of Missouri.” Id. at *44-45. On December 1, 2021, the Court in this matter, too, denied Government Defendants’ Motion for a Stay Pending Appeal. See Louisiana v. Becerra, No. 3:21-CV-03970, 2021 U.S. Dist. LEXIS 233393, at *3 (W.D. La. Dec. 1, 2021.)

CMS

Consequently, on December 2, 2021, Centers for Medicare & Medicaid Services (CMS) announced that it “will not enforce the new rule regarding vaccination of health care workers or requirements for policies and procedures in certified Medicare/Medicaid providers and suppliers (including nursing facilities, hospitals, dialysis facilities and all other provider types covered by the rule) while there are court-ordered injunctions in place prohibiting enforcement of this provision.”

Source: https://www.cms.gov/files/document/qso-22-04-all.pdf.

OSHA

As for OSHA, “[o]n November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”).” In that case, “[t]he court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.”” As such, “[t]he U.S. Court of Appeals for the Sixth Circuit now has jurisdiction over ETS challenges and DOL has filed a motion to lift the stay.” Currently, “OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

Source: https://www.osha.gov/coronavirus/ets2.

As a result of the above court ruling and subsequent actions by the CMS and OSHA, thousands of jobs have most likely have been saved, as employees were faced with the option of quitting their jobs if they did not wish to adhere to the COVID-19 vaccine mandates or be coerced to take the COVID-19 vaccines.

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