18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 561 without preliminary relief and that preliminary relief was not contrary to the public interest. For these reasons, the Court granted the motion for a preliminary injunction. State Of Georgia, et al. v. Biden, Case No. 21-14269 (11th Cir. Dec. 17, 2021). Plaintiffs, a group of several states, their Governors, and multiple state agencies, brought a class action and sought a preliminary injunction blocking the implementation and enforcement Executive Order 14042, which mandated contractor and sub- contractor compliance with COVID-19 vaccination requirements. Additionally, the Americans Builders and Contractors Inc. (“ABC”) intervened in the action and filed its own motion for a preliminary injunction. The District Court granted the motions for a preliminary injunction. On appeal, the Eleventh Circuit denied Defendants’ request to stay the preliminary injunction blocking the COVID-19 vaccine mandate for federal contractors from going into effect pending Defendants’ appeal. The Eleventh Circuit determined that Defendants failed to demonstrate that it would harmed by the injunction. The Eleventh Circuit opined that it could not stay the preliminary injunction without any evidence that the preliminary injunction would cause Defendants irreparable injury. The Eleventh Circuit did not address Defendants’ likelihood of success on the merits, although the District Court’s underlying order found that Defendants most likely exceeded the procurement authority delegated by Congress to the President under the Federal Property and Administrative Services Act (“FPASA”). At the same time, the Eleventh Circuit also granted an expedited appeal of the District Court’s order. State Of Louisiana, et al. v. Becerra, Case No. 21-CV-03970 (W.D. La. Nov. 30, 2021). Plaintiffs, the States of Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Ohio and Kentucky, filed suit seeking a preliminary injunction barring implementation of the COVID-19 Center for Medicare & Medicaid Services (“CMS”) Mandate. The CMS Mandate, which affects over 10 million healthcare workers in the United States, requires the staff of 21 types of Medicare and Medicaid providers to receive the COVID-19 vaccine. Failure to comply with the CMS Mandate could result in penalties, including termination of the Medicare/Medicaid provider agreement. The Court held that Defendants did not have the authority to mandate a vaccine to over 10 million healthcare workers. The Court opined was something that should be done by Congress and not a government agency. However, the Court acknowledged that it was not even clear that an act of Congress mandating a vaccine would be constitutional. In sum, the Court concluded that CMS did not have the authority to mandate the vaccination of the healthcare workers by a general authorization statute. Relying upon the Fifth Circuit’s recent decision addressing the identical issue in BST Holdings, LLC v. OSHA , 17 F. 4th 604 (5th Cir. 2021), the Court held that Plaintiffs had satisfied the three requirements for a preliminary injunction. First, the Court held that Plaintiffs were likely to succeed on the merits as to each of their arguments as to why the CMS Mandate was unlawful. Second, the Court held that Plaintiffs had established that they would suffer irreparable injury if the injunction was not granted. Specifically, the Court found that Plaintiffs would suffer irreparable injury by not being able to enforce their own laws, which were preempted by the CMS Mandate, by incurring the costs of training and enforcing the CMS Mandate, and by having their police powers encroached. Third, the Court held that the balance of equities weighed in favor of granting the injunction because the public interest was served by maintaining the constitutional structure and maintaining the liberty of those who do not wish to receive the COVID -19 vaccine. For these reasons, the Court granted Plaintiffs’ motion for a preliminary injunction. State Of Louisiana, et al. v. Becerra, 2021 U.S. App. LEXIS 37035 (5th Cir. Dec. 15, 2021). Plaintiffs, the States of Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Ohio and Kentucky, filed suit seeking a preliminary injunction barring implementation of the COVID-19 Center for Medicare & Medicaid Services (“CMS”) Mandate. The CMS Mandate, which affects over 10 million healthcare workers in the United States, requires the staff of 21 types of Medicare and Medicaid providers to receive the COVID-19 vaccine. Failure to comply with the CMS Mandate could result in penalties, including termination of the Medicare/Medicaid provider agreement. The District Court granted Plaintiffs’ motion and entered a nationwide injunction. It found that Defendants did not have the authority to mandate a vaccine to over 10 million healthcare workers. On appeal, the Fifth Circuit addressed Defendants’ motion to stay the District Court’s nationwide injunction pending appeal of the District Court’s preliminary injunction ruling. The Fifth Circuit denied the motion insofar as the order applied to the 14 Plaintiff States, and granted the stay as to the order’s application to any other jurisdictions. The Fifth Circuit opined that because other lawsuits were considering the same issues, and several District Courts had already inconsistently ruled