As reported less than a week ago, some states are pushing back on government and private employer vaccine mandates through state legislation and lawsuits against the federal government. In just three business days since that report’s release, certain states are continuing to push back, as exemplified by at least five significant lawsuits and three new state legislative efforts.  We reported on the November 5, 2021 Alabama effort here.  The governors of Alaska and South Carolina have entered related orders as well, as highlighted below.

Federal OSHA Emergency Standard / Vaccine-or-Test Regulation Lawsuits All Filed on November 5, 2021

• Joint Lawsuit (5 states): Five states (Louisiana, Mississippi, South Carolina, Texas, and Utah) and seven private entities filed a Petition for Review with the United States Court of Appeals for the Fifth Circuit challenging the validity of the federal OSHA emergency regulation for large employers issued the day before, on November 4. In response, on Saturday, November 6, 2021, the Fifth Circuit took the unusual step of issuing a temporary stay of the OSHA emergency temporary standard (ETS) pending expedited judicial review. The court ordered the federal government to respond to the petitioner’s motion for a permanent injunction by close of business on Monday, November 8, and for the petitioners to reply by close of business on Tuesday, November 9. Moreover, it is unclear if the Fifth Circuit’s stay applies nationally, or only to states within that judicial circuit.

• Joint Lawsuit (11 states): Eleven states (Alaska, Arizona, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming) and four private entities filed a Petition for Review with the United States Court of Appeals for the Eighth Circuit, arguing that the federal OSHA ETS’ vaccine-or-test regulation is “unconstitutional, unlawful, and unwise.” Specifically, the petitioners argue that 1) OSHA lacks the statutory authority to issue the ETS, 2) the ETS infringes on states’ powers under the Tenth Amendment, and 3) OSHA’s justification for the mandate is not supported by substantial evidence in the record.

• Joint Lawsuit (7 states): Seven states (Idaho, Kansas, Kentucky, Ohio, Oklahoma, Tennessee, and West Virginia) filed a Petition for Review with the United States Court of Appeals for the Sixth Circuit requesting an immediate stay of the OSHA emergency standard and a final judgment on the standard from that court no later than November 12, 2021.

• Joint Lawsuit (3 states):And finally, three states (Alabama, Florida, and Georgia) and six private entities filed another Petition for Review with the United States Court of Appeals for the Eleventh Circuit, making similar arguments to those advanced in the other lawsuits.

When there are multiple petitions for review filed in multiple circuits, the multidistrict litigation rules¹ require that all petitions be consolidated in one circuit. The circuit in which all cases are consolidated is chosen via lottery from among all circuits in which a petition has been filed. Here, consolidation should occur on or after November 15, 2021. While the Fifth Circuit issued the temporary stay, discussed above, and could issue a permanent injunction in the coming days, once the petitions are consolidated, the circuit that hears the consolidated cases can choose to keep the Fifth Circuit’s stay in place or lift it.² 

Another Federal Contractor Vaccine Mandate Lawsuit

• Joint Lawsuit (3 states): On November 4, 2021, three additional states (Indiana, Louisiana, and Mississippi) filed a lawsuit seeking to nullify Executive Order 14042 and related government guidance (the Biden Executive Order).  The three states filed this most recent suit in the United States District Court for the Western District of Louisiana, making arguments similar to those in the lawsuits already filed and discussed previously.

Additional State Pushback

Alaska Order: On November 2, 2021, Alaska Governor Dunleavy issued Administrative Order No. 325, in response to the Biden executive order and the federal OSHA emergency temporary standard, as well as other actions by the Biden administration. Specifically, Dunleavy’s Order prohibits Alaska state agencies from participating in or using state funds or personnel “to further a federal vaccine mandate for employers.” This Order is especially significant as Alaska is one of 22 states that administers its own OSHA program, suggesting that Alaska OSHA may refuse to adopt the federal OSHA emergency regulations concerning vaccines or tests.

South Carolina Order: On November 4, 2021, South Carolina Governor McMaster issued Executive Order No. 2021-38, that directed all South Carolina state agencies to immediately notify the Office of the Governor and the state Attorney General’s Office upon receiving any communication or directives from the Biden administration concerning COVID-19 vaccination requirements. Like Alaska, South Carolina administers its own OSHA program.

While these lawsuits and state legislative efforts wind their way through the courts, businesses with employees in these states are left to continue grappling with how to proceed in the face of conflicting federal and state government mandates regarding COVID-19 vaccination and testing. Littler will continue monitoring these legislative, judicial and regulatory actions and will update these ever-changing standards accordingly.