Biden administration vaccine mandate causing confusion and concerns as U.S. Circuit Court takes up appeal

November 22-28, 2021

By Wesley Brown


As a federal appeals court in Ohio prepares to take up the Biden’s administration’s COVID-19 vaccination and testing standard, many employers in Arkansas are still uncertain as to how to move forward before the new rule takes effect in early 2020.


That uncertainty first began after President Joe Biden in early September first announced his sweeping six-pronged national strategy to “vaccinate the unvaccinated,” which includes millions of workers in the U.S. workplace and about half of the state’s 1.3 million worker labor force that has not taken the COVID-19 shot.


On Nov. 4, Biden kept his promise when the U.S. Department of Labor and the Centers for Medicare and Medicaid made separate announcements requiring COVID-19 for upwards of 105 million workers in the public and private sector beginning on Jan. 4, 2022. At CMS, the Biden administration will require COVID-19 vaccination of eligible staff at health care facilities that participate in any Medicare and Medicaid programs.


“Ensuring patient safety and protection from COVID-19 vaccine has been the focus of our efforts in combating the pandemic and the constantly evolving challenges we’re seeing,” said CMS Administrator Chiquita Brooks-LaSure, noting that apply to approximately 76,000 providers and cover over 17 million health care workers across the country. “(This) action addresses the risk of unvaccinated health care staff to patient safety and provides stability and uniformity across the nation’s health care system to strengthen the health of people and the providers who care for them.”


At the Labor Department, the Occupational Safety and Health Administration’s (OSHA) also announced on Nov. 4 that private companies with 100 or more employees must require employees be vaccinated against COVID-19 at the beginning of the New Year. Under this standard, U.S. Labor Secretary Marty Walsh also said covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.


“COVID-19 has had a devastating impact on workers, and we continue to see dangerous levels of cases. We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace against the grave danger of COVID-19. Many businesses understand the benefits of having their workers vaccinated against COVID-19, and we expect many will be pleased to see this OSHA rule go into effect,” Walsh said of the workplace mandate that will impact up to 84 million workers.


It was those two announcements that set off a cavalcade of reactions that has left public and private employers, state and national trade groups, and policymakers in Arkansas looking for answers as the courts review the Biden administration mandate. In fact, Gov. Asa Hutchinson and Attorney General Leslie Rutledge made clear shortly after the OSHA and CMS announcements that the Biden administration mandate is too overreaching.


“The Biden administration followed through on its promise to impose federal vaccine mandates on businesses, hospitals and nursing homes. This is the first time in the history of our country that a federal mandate has been issued that impacts broad swaths of the American population,” said Hutchinson said during a Nov 4 press briefing. “I oppose these mandates on the freedom that businesses should have to run their workplace. Businesses should have the freedom to make their own decisions, whether they should have the decision to require vaccines in the workplace or not to have vaccine requirements …”


Hutchinson further stated the mandates will create hardship on Arkansas workers, employers, and state policymaker’s already working to get people back in the workforce. He noted that in recent conversations following several large economic development announcements, some CEOs relocating jobs to Arkansas have indicated that federal OSHA and CMS mandates will make it even harder to find workers amid ongoing labor shortages.


Rutledge, who recently announced that she was dropping out of the 2022 governor’s race, has also vocally opposed the Biden administration vaccine mandates. A day after the OSHA announcement, Rutledge and attorney generals in Alaska, Arizona, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming filed a challenge against President Biden, OSHA and Labor Secretary Walsh in the 8th Circuit Court of Appeals in St. Louis.


“President Biden’s overreach is excessive and indefensible, and beyond unconstitutional,” said Rutledge. “I will continue to be the last line of defense against Biden’s liberal and reckless overreaching federal government. Americans deserve more than having to decide between getting the shot or losing a job.”


After multiple challenges to the OSHA rule were filed in all 12 federal circuit courts across the U.S., the 5th U.S. Circuit Court of Appeals in New Orleans permanently blocked the OSHA vaccination and testing emergency temporary standard from going into effect. Under federal law, when multiple petitions for review of a single agency action are filed in at least two courts of appeals within 10 days, the petitions are consolidated and heard by one court chosen at random. The Justice Department said last week there were 34 petitions for review across all the circuit courts.


On Tuesday (Nov. 16), the U.S. Department of Justice held a lottery to determine which federal appeals court would take up the case. The 6th Circuit Court of Appeals in Cincinnati, led by Chief U.S. Judge Jeffrey Sutton, was randomly selected to take up the Biden administration’s temporary order. According to the three-page court ruling, all pending cases challenging the OSHA order will now be transferred to the 6th Circuit and a panel of three judges will consider them in a consolidated fashion.


The 6th Circuit Court today includes eight sitting judges appointed by Democratic presidents and 21 appointed by Republicans. Of its 16 active judges, 11 were appointed by Republican presidents and five by Democratic presidents. Once three judges to hear the case are selected, the Ohio federal court will also likely rule on the Nov. 12 ruling by the 5th Circuit issued an order blocking enforcement and implementation of the OSHA mandate. The order was issued after an expedited briefing and in response to a petition filed by various employers, states, religious groups, and individual citizens seeking a temporary stay of the emergency order pending judicial review to determine if a permanent injunction should be issued.


Meanwhile, Hutchinson also said the Biden administration’s CMS mandate puts state human development centers that receive Medicaid or Medicare funding at risk because 45% of the employees at those facilities are still unvaccinated.


“These are employees of which we have high turnover and a hard time keeping our workplace and professionals there that do the work for our residents,” he said. “So, this makes the jobs much more difficult and it potentially will jeopardize the well-being of those centers if we can keep the staff in place that we need.”


Those concerns led Rutledge to also challenge the CMS interim final rule requiring COVID-19 vaccinations for workers in most health care settings that participate in the Medicare and Medicaid programs, including hospitals and health systems. On Nov. 10, attorneys general in Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire filed a lawsuit claiming the interim final rule violates the Administrative Procedure Act (APA) and other laws and is unconstitutional.


Rutledge said the CMS vaccine mandate threatens to worsen the alarming shortage of healthcare workers, particularly in rural communities of Arkansas that already struggle with retention. Like the OSHA rule, all eligible government workers must be fully vaccinated by Jan. 4, 2022.


“President Biden’s latest unconstitutional overreach will directly impact Arkansas’s healthcare community,” said Rutledge. “I will be the last line of defense against Biden’s reckless overreach. Americans deserve better.”



Some Arkansas employers and healthcare providers already moving to vaccinate workforce


Despite the legal challenges, several private and public sector employers and most hospitals and healthcare facilities in Arkansas are moving forward to comply with the federal vaccine mandate. For example, Springdale-based Tyson Foods in August announced that it would pay $200 to fully vaccinated frontline team members and require all team members at U.S. office locations to be fully vaccinated by Oct. 1. All other team members were also required to be fully vaccinated by Nov. 1, subject to ongoing talks with locations represented by unions.


Tyson bold move made it the largest U.S. food company to require COVID-19 vaccinations for its entire workforce. The Arkansas food giant said it has also spent more than $700 million related to COVID-19, including on efforts to combat its spread, such as buying masks, face shields and temperature scanners, installing protective barriers and providing on-site testing and vaccinations.


“Getting vaccinated against COVID-19 is the single most effective thing we can do to protect our team members, their families and their communities,” said Tyson Chief Medical Officer Dr. Claudia Coplein. “With rapidly rising COVID-19 case counts of contagious, dangerous variants leading to increasing rates of severe illness and hospitalization among the U.S. unvaccinated population, this is the right time to take the next step to ensure a fully vaccinated workforce.”


On the healthcare front, the University of Arkansas for Medical Sciences also announced that it would require its statewide workforce to be fully vaccinated by Jan. 4, 2022, the same date as the OSHA deadline. Earlier this year, CHI St. Vincent and St. Bernards Healthcare System in Jonesboro announced they would require employees to be fully vaccinated by Nov. 1. 


For military personnel, the four US military branches have also set deadlines for when active-duty, reserve and National Guard service members must be vaccinated against the COVID-19 virus. The US Army will require all active-duty military members to be vaccinated by Dec. 15, 2021, and all National Guard soldiers will be required to be vaccinated by June 30, 2022.


All active-duty Marines and Navy personnel must be fully vaccinated against COVID-19 by Nov. 28, and reservists by Dec. 28, to comply with the Department of the Navy’s latest immunization policy. The Secretary of the Air Force Frank Kendall directed active-duty airmen to be fully vaccinated against COVID-19 on Nov. 2, and Air National Guard and Air Force Reserve personnel a month later.


Also, the US. Department of Defense (DOD) sent a reminder its civilian workforce last week that employees and must be fully vaccinated with the COVID-19 shot series by Nov. 22. That date includes the two-week waiting period for full vaccination effectiveness following the final vaccine dose, a DOD official said.


The Nov. 22 mandate applies to all non-exempt federal employees regardless of whether they telework or work in a DOD office. Exemptions for medical or religious reasons as required by law had to be filed by Nov. 8. The deadline for Pentagon contractors may vary, DOD officials said. Contractors’ deadline for full vaccination is expected to be Dec. 8, or for new covered contracts after that date, no later than the first day of performance under the new contract.


Meanwhile, Little Rock law firm Friday Eldredge & Clark has also sent out advisories to local employers concerning the COVID-19 vaccine mandates. On Nov. 10, the Arkansas State Chamber of Commerce/Associated Industries of Arkansas and Friday attorneys Mike Moore, Dan Herrington and Mark Cameron also held a webinar to discuss the federal vaccine and testing mandate. Information on those webinars can be found here:  




1./2. Biden’s employer vaccine order hits court snag, causes confusion --- The U.S. Sixth Circuit Court of Appeals has been selected to consolidated 34 separate lawsuits filed against President Biden’s COVID-19 vaccine mandate on Nov. 4 that could impact millions of U.S. workers.


3./4. On Nov. 4,  the Occupational Safety and Health Administration (OSHA) and U.S. Center for Medicare and Medicaid made separate announcements requiring COVID-19 vaccines for upwards of 105 million workers in the public and private sector beginning Jan. 4, 2022.

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