Certain states are continuing to prohibit or severely curb the ability of private employers to mandate that employees be vaccinated against COVID-19. In just 10 days since our most recent update, several additional states have enacted, or are on the verge of enacting, such restrictions. Further, lawsuits continue to challenge the federal government contractor vaccine mandate (the “Government Contractor Vaccine Mandate”) and the Centers for Medicaid and Medicare Services vaccine mandate for healthcare workers (the “CMS Vaccine Mandate”). We reported on the new law in Florida here. We discuss other states’ recent efforts below.

Federal Contractor Vaccine Mandate Lawsuit Updates

• Joint Lawsuit (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 U.S. District Court for the Southern District of Georgia against the Federal Contractor Vaccine Mandate. The court set a hearing on those parties’ request for a preliminary injunction for December 3, before Judge R. Stan Baker.

• Arizona Lawsuit. In September 2021, Arizona filed a lawsuit challenging the Federal Government Contractor Vaccine Mandate and the federal OSHA emergency vaccine-or test-regulation (the “ETS”) in the U.S. 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 the federal requirements, on November 10, Judge Michael Liburdi denied the state’s request for a temporary restraining order and preliminary injunction.

• Florida Lawsuit. As previously reported, on October 28, 2021, Florida filed a lawsuit in the U.S. District Court for the Middle District of Florida seeking a preliminary injunction against the Federal Contractor Vaccine Mandate. The court set a hearing in the matter for December 7, before Judge Steven Merryday.

CMS Vaccine Mandate Lawsuits

• Joint Lawsuit (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 the U.S. District Court for the Eastern District of Missouri, challenging CMS’s Vaccine Mandate for healthcare workers. The lawsuit alleges violations of the Administrative Procedure Act (APA), the Social Security Act, 42 U.S.C. § 1395z, 42 U.S.C. § 1302, and constitutional violations.

• Joint Lawsuit (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 Vaccine Mandate for healthcare workers in the U.S. District Court for the Western District of Louisiana. That lawsuit makes similar arguments to the 10-state lawsuit discussed above.

• Florida Lawsuit: On November 18, 2021, Florida also challenged CMS’s Vaccine Mandate for healthcare workers, filing a lawsuit in the U.S. District Court for the Northern District of Florida. The Florida lawsuit primarily alleges constitutional violations and makes APA arguments as well. On November 20, 2021, Judge M. Casey Rodgers denied Florida’s Motion for a Temporary Restraining Order or Preliminary Injunction.

Additional State Legislative Pushback

North Dakota Legislation: On November 15, 2021, North Dakota Governor Burgum signed into law legislation (HB 1511) expanding the reasons for which an employee, prospective employee, or contractor can avoid an employer mandate to receive the COVID-19 vaccination beyond the exemptions provided by federal and North Dakota state anti-discrimination law. The new North Dakota law permits individuals to avoid vaccination by 1) submitting proof of COVID-19 antibodies, which is valid for six months from the date of the antibody test, 2) undergoing testing in lieu of vaccination, 3) submitting a certification from a health care provider that the vaccine would “endanger the life or health” of the individual, or 4) submitting a certificate stating that their “religious, philosophical, or moral beliefs” oppose immunization. Notably, and unlike the recent legislation in Alabama, Arkansas, and Tennessee, the North Dakota law does not apply to entities required to comply with federal law, rules, or guidance relating to vaccinations. The North Dakota law also prohibits private businesses from requiring patrons, clients, or customers from providing documentation of vaccination or antibodies to access services, with very limited 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 employees by governments and private businesses which was signed into law by Governor Lee on November 12. It should be noted that the CMS Vaccine Mandate preempts this Tennessee state law, although it is not clear whether Tennessee will recognize that preemption. The Tennessee law does provide a mechanism for businesses that would experience a “loss of federal funding” if they complied with the Tennessee law (for example, by failing to comply with the Federal Contractor Vaccine Mandate) to request an exemption from the Tennessee Comptroller. Guidelines regarding the exemption program and how to request an exemption are available here.

Texas Litigation: As previously reported, Texas Governor Abbott issued Executive Order GA-40 in October 2021, allowing employees subject to a vaccine mandate by their employer to obtain an exemption for medical or religious reasons, as well as for reasons of “personal conscience.” The meaning of the “personal conscience” reference remains uncertain. On November 15, 2021, Governor Abbott filed a lawsuit in the U.S. Court of Appeals for the Fifth Circuit challenging the federal OSHA ETS / vaccine-or-test regulation, and asking the Fifth Circuit to confirm that the OSHA ETS does not preempt Governor Abbott’s executive order. Texas is already a party to other challenges to the federal OSHA ETS that have been consolidated in the U.S. Court of Appeals for the Sixth Circuit.

Utah Legislation: On November 16, 2021, Utah Governor Cox signed into law a bill (SB 2004) expanding the reasons an employee can use to avoid an employer mandate to receive a COVID-19 vaccination. The new Utah law requires employers to provide exemptions to a vaccination mandate if an employee or prospective employee submits a statement to the employer stating that receiving the COVID-19 vaccine would: “(a) be injurious to the health and well-being of the employee or prospective employee; (b) conflict with a sincerely held religious belief, practice, or observance of the employee or prospective employee; or (c) conflict with a sincerely held personal belief of the employee or prospective employee.” In addition, the law requires employers to pay for COVID-19 testing for employees and it prohibits employers from keeping or maintaining a record or copy of an employee’s proof of vaccination unless otherwise required by law, an established business practice or industry standard or, in the case of a contract for goods or services (not employment), entered into before November 5, 2021. Presumably, the provision allowing recordkeeping in the event of a contract entered into prior to November 5 relates to contracts that require retention of proof of vaccination, but the law is not clear on that point. Employers subject to the Federal Contractor Vaccine Mandate are not subject to this Utah law, nor are employers that are subject to the CMS Vaccine Mandate, including academic medical centers.

Wyoming Legislation: On November 12, 2021, Wyoming Governor Gordon signed into law House Bill 1002 which, in part, prohibits any public entity from enforcing “any mandate or standard of the federal government … that requires an employer to ensure or mandate that an employee shall receive a COVID-19 vaccination.” This prohibition is only enforceable while such a federal standard is “subject to a federal judicial stay applicable in Wyoming, or is otherwise repealed, withdrawn, superseded or declared by a federal court of competent jurisdiction to be unlawful or unenforceable” – in an apparent nod to the stay of the federal OSHA ETS in the Fifth Circuit. The law also provides state funding for Wyoming’s litigation challenging the various federal vaccine mandates.

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