Litigation Update: COVID-19 Vaccine and Mask Requirements
(Released January 11, 2022) The U.S. Department of Health and Human Services (HHS) has received notice that the Vaccine and Mask Requirements to Mitigate the Spread of COVID-19 in Head Start Programs, 86 Fed. Reg. 68052 (Nov. 30, 2021) (the "Interim Final Rule" or IFC), is preliminarily enjoined in 25 states. This means the court has imposed an injunction to stop the implementation and enforcement of the rule in those states pending future developments in the litigation process.
As of Dec. 31, 2021, following a decision by the United States District Court for the Northern District of Texas, implementation and enforcement of the IFC is preliminarily enjoined in Texas.
As of Jan. 1, 2022, following a decision by the United States District Court for the Western District of Louisiana, implementation and enforcement of the IFC is also preliminarily enjoined in the following 24 states: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Wyoming
Head Start, Early Head Start, and Early Head Start-Child Care Partnership grant recipients in those 25 states are not required to comply with the IFC pending future developments in the litigation. The IFC remains in effect in all other states, the District of Columbia, and U.S. territories.
The Office of Head Start (OHS) has developed responses around two key issues for grant recipients in the 25 affected states.
- Q: Do the injunctions prohibit a program in an impacted state from moving forward with their own requirements and policies for vaccination and masking?
A: No. Programs in states where the IFC has been preliminarily enjoined are permitted to develop and enforce their own policies, as necessary to support the health and safety of the children in their care. The preliminary injunctions apply only to the federal government’s implementation and enforcement of the IFC; they do not prohibit programs from developing and implementing their own policies. Further, these programs should seek guidance from their own legal counsel about the policies they set within the context of their individual state laws.
- Q: Are tribes located in an impacted state covered by the injunctions?
A: Yes, the injunctions apply to tribes located within those 25 states covered by the injunctions.
Head Start programs have been working tirelessly to support the children and families of their community, and to provide the in-person services that make a difference in each child’s life. Vaccination and masking are essential components necessary to returning to full in-person comprehensive Head Start services — and to keep workers, their families, and communities safe. OHS will continue to support programs in developing policies and procedures, and in using American Rescue Plan funds to meet the needs of their community, as we navigate the COVID-19 pandemic together.
