OFCCP Weekly Review: January 2022 | Association of Direct Employers



Saturday, January 1, 2022: District courts in the United States impose a vaccination and masking mandate that the HHS seeks to impose on teachers and students participating in federal “Head Start” programs with possible legal implications for others private sector immunization mandates

In two separate decisions released at the end of last week, two US district courts ordered a November 30, 2021 administration for children and families (“ACH”) Provisional final rule (“Rule”) imposing vaccine and mask requirements on teachers and students in federal head start programs. The two decisions end the implementation of vaccine and mask requirements in Head Start preschool education programs operating in 25 states. The two cases are Texas, et al. vs. Becerra, et al., Case n ° 5: 21-cv-300-H (ND Tex. 31 December 2021), and State of Louisiana, et al. vs. Becerra, et al., Case No.3: 21-cv-04370-TAD-KDM (WD La. January 1, 2022).

The ACH rule attempted to add immunization and masking mandates to the existing “Head Start Program Performance Standards” imposed by the Secretary of the Department of Health and Human Services (“HHS”), a federal agency at the level. of the Cabinet. Institutions are required to meet “Head Start Program Performance Standards” to continue to receive federal funding for their Head Start programs. The Rule, which came into effect on November 30, 2021, required:

  • “Universal Masking” in all indoor environments for all persons 2 years of age and over, except when persons are eating or drinking, napping, unable to wear a mask due to a disability under the Americans with Disabilities Act or is a child with health care needs.
  • Masking for those who are not fully immunized when the person is indoors, or when the person is outdoors in crowded places or during activities involving close and sustained contact with other people.
  • Complete vaccination by January 31, 2022 for all Head Start staff, volunteers and some contractors who work in classrooms or directly with children, unless the person is exempt because of a vaccine is medically contraindicated, requires delayed vaccination due to medical necessity, or is legally entitled to accommodation based on religious beliefs or medical disability.

In Texas, et al. v. Becerra, the court concluded that the plaintiffs had demonstrated a substantial likelihood of success on the merits of their claim against the warrant, and that the imposition of the warrant would result in a substantial threat of harm to the plaintiffs. The court ruled the rule exceeded the statutory authority Congress had granted the HHS. In addition, the court ruled that the plain language of the legal provisions the HHS relied on did not authorize the issuance of mask and vaccine warrants. Indeed, these mandates are not linked to the performance of the Head Start program, such as the “administrative or financial management standards” of the program or the “condition and location of the program facilities”.

Moreover, even though the mandates changed the performance standards of the Head Start program, the court ruled that the federal agency had not followed the appropriate administrative procedures required to change its standards. The court concluded that the HHS had failed to consult many of the experts identified in the law as necessary stakeholders, that there was no valid reason to issue the rule without public notice and comment given the delay in complying with the rule, and that the rule was arbitrary. and temperamental in taking a unique approach with no end date.

Based on the foregoing, the court issued an injunction terminating the implementation and enforcement of the rule in the state of Texas.

In Louisiana, et al. v. Becerra, 24 states have sought to impose the same mandate of vaccines and masks. Quoting President Ronald Reagan’s famous joke at a press conference in 1986 that “the nine most terrifying words in the English language are: ‘I come from the government and I am here to help'”, the court said ‘first found that the 24 states had both individual and quasi-sovereign interests to be protected, including the protection of its citizens against the obligation to submit to vaccinations and / or mask warrants. As legitimate claimants, the court then ruled that the claimants had established a likelihood of success on the merits on grounds similar to those the court held in Texas, et al. vs. Becerra, et al. Specifically, the court ruled that the federal agency did not have the power to issue the warrant and that the rule violated the notice and comment requirements of the Administrative Procedures Act. In addition, the court of Louisiana, et al. separately ruled that the Rule violated the 10e Amendment to the Constitution of the United States, in that states retain the power to enact public health requirements in accordance with their state powers. As such, the court directed the implementation and enforcement of the Rule in the 24 states that appeared as plaintiffs in the action.

The 24 states targeted by the Court’s injunction are: Louisiana, Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Wyoming.

These injunctions remain in effect for the duration of the litigation until the cases are heard on the merits by the respective courts. It is expected, as in other cases where the Biden administration’s warrants have been rejected, that the administration will seek an immediate appeal to lift the respective injunctions.

Unfortunately for the administration, the two district courts that issued opinions last week sit on the Fifth Circuit Court of Appeals, the same court that has ordered OSHA ETS to impose vaccination requirements on employers. private. As such, the Administration will have a longer “way to go” in reaching a tribunal more favorable to the Administration’s position.



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