17 November 2021

Vaccine and Testing Mandates Litigation Update

Over the past few months, the Biden administration has issued three federal COVID-19 vaccination and testing mandates: the Federal Contractor executive order, the OSHA 100+ Employee Emergency Temporary Standard (ETS), and the Centers for Medicare & Medicaid Services (CMS) rule.  Multiple legal challenges have since been filed against all three mandates. Here’s a quick summary of what you need to know about the current status of each mandate:

CMS Rule

  • Applies to staff at health care facilities that participate in the Medicare and Medicaid programs.
  • Deadlines:
    • December 6, 2021: First (or only if receiving a single-dose vaccine) dose must be received.
    • January 4, 2022: Second vaccine dose must be received.
  • No testing option in lieu of vaccination permitted.
  • At least ten states have filed a legal challenge against the CMS Rule, but a stay of the mandate has not been issued.
  • Challengers argue it is unconstitutional and fails to comply with the Administrative Procedure Act.
  • At this time the CMS Rule is in effect and covered employers should prepare to comply with all deadlines.

Federal Contractor Executive Order

  • Applies to new federal contracts and existing federal contracts once the required vaccine mandate clause is added to the contract.
  • Deadlines:
    • January 18, 2022: workers must be “fully vaccinated” (meaning they must have received their final dose no later than January 4)
  • No testing option in lieu of vaccination permitted.
  • Legal challenges against the federal contractor mandate have been filed in several circuit courts, but a stay of the mandate has not been issued.
  • Challengers argue that it exceeds federal authority and is unconstitutional.
  • At this time the contractor mandate is in effect and covered contractors should prepare to comply with all deadlines.


  • Applies to all employers with 100 or more employees at any time the ETS is in effect.
  • Employers can implement either a mandatory vaccination policy or a vaccination policy that allows for weekly testing and masking in the workplace for non-vaccinated employees.
  • Does not apply to employees who telework or who don’t come into indoor contact with others
  • Deadlines:
    • December 6, 2021: Employees who are not fully vaccinated must wear masks in the workplace.
    • January 4, 2022: Employees must have received their final vaccine dose or comply with weekly testing protocols.
  • Legal challenges against the ETS have been filed in nearly all circuit courts.
  • Challengers of the ETS argue that it is unconstitutional and exceeds OSHA’s statutory authority.
  • At this time the ETS is on hold due to the stay issued by the Fifth Circuit Court of Appeals last Friday.
  • On November 16, the Sixth Circuit Court of Appeals won the multidistrict litigation lottery, which means it will hear the consolidated legal challenges against the ETS.
  • The Sixth Circuit can decide whether to keep or lift the stay.
  • Ultimately this case is very likely to be decided by the Supreme Court.