COVID-19 Employer Mandate Cases Consolidated in the Sixth Circuit
Last week, a federal judicial panel chose the U.S. Court of Appeals for the 6th Circuit to hear the consolidated challenge to the Nov. 5 Department of Labor (DOL) COVID-19 vaccine mandate. Per the Federal Rules of Procedure, when multiple parties sue a federal agency in different appeals courts, a special judicial panel consolidates the cases and selects one court to hear them all.
Lawsuits opposing the DOL COVID-19 vaccine mandate have been filed by states and companies in all twelve federal court circuits. At issue is the interim final rule mandating businesses with more than 100 employees to either require vaccinations for employees or weekly testing and the wearing of masks for unvaccinated employees. Employers must comply with most requirements (e.g., deciding whether vaccinations would be required and if so, obtaining proof of vaccinations) by Dec. 5 and must comply with testing requirements by Jan. 4, 2022.
The consolidated case encompasses only the cases challenging the employer mandate. In addition to hearing the consolidated case, the 6th Circuit will also have to determine whether the nationwide stay on the mandate imposed by the 5th Circuit will remain in place or be lifted.
The cases challenging the Centers for Medicare & Medicaid Services (CMS) Nov. 5 federal COVID-19 mandate have not been stayed as of Nov. 19, nor are these cases included in the 6th Circuit consolidated case. Health care employers should continue to comply with the CMS vaccine mandate requiring all eligible staff be fully vaccinated by Jan. 4, 2022.