On Again, Off Again Vaccine Mandates: What Should Employers Do Now?

And Then There Was One...

Mere weeks ago, there were three federal government-issued COVID-19 vaccine mandates in play: (1) the Occupational Safety and Health Administration’s (OSHA’s) Emergency Temporary Standard (ETS) vaccine or test weekly mandate that would have applied to large employers with 100 or more employees; (2) the Centers for Medicare & Medicaid Services (CMS) vaccine mandate that requires the staff of CMS-funded healthcare providers and suppliers to be fully vaccinated with no testing option; and (3) the federal contractor and subcontractor mandate that would require certain contractors and subcontractors who do business with the federal government to implement COVID-19 workplace safety measures, including a vaccine mandate with no testing option and masking, social distancing and “designation of an individual to coordinate COVID-19 safety protocols at covered workplaces” requirements. All three mandates provide that an employee may be entitled to an accommodation for a disability, medical condition or sincerely held religious belief under the ADA and Title VII.

As we write this newsletter, only the CMS mandate is currently enforceable. The U.S. Supreme Court allowed the CMS vaccine mandate to become effective because the court reasoned that CMS has broad powers to condition providers and suppliers’ participating in CMS programs on requirements that CMS finds necessary in the interest of the health and safety of individuals who are furnished services under the programs. The court’s ruling was heavily reliant on CMS’s specific statutory authority to regulate the safe and effective provision of healthcare.

So, What Happened to the Others?

OSHA ETS

We will save you a painful recitation of all the varying lawsuits filed challenging the OSHA ETS and federal contractor/subcontractor mandate and simply review some of the most recent developments in the ongoing litigation.

To start, you may have heard that on January 13, 2022, the Supreme Court, in a 6-3 majority decision, issued an opinion putting the ETS on hold indefinitely pending further review by the United States Court of Appeal for the Sixth Circuit (which had reinstated the vaccinate-or-test mandate).

Although the Supreme Court acknowledged that OSHA has authority under the Occupational and Safety Hazard Act to set safety standards for the workplace, the court concluded that COVID-19 is a risk that occurs in many workplaces, but is not an occupational hazard in most as it spreads in several other places where people gather that are outside OSHA’s jurisdiction. The court stated that allowing the ETS to become effective would amount to permitting OSHA to regulate the hazards of daily life and significantly expand OSHA’s regulatory authority without clear congressional authorization. The court went on to reason that the ETS is not narrowly tailored to address specific workplaces or industries where COVID-19 poses a special danger because of the particular job that would be plainly permissible, and therefore this fact also points to a general public health measure (beyond OSHA jurisdiction) rather than a specific occupational health or safety standard (within OSHA jurisdiction.)

Although the Sixth Circuit Court of Appeals would have been set to review the legality of the ETS on the merits based on a more comprehensive review, and could have technically reinstated the ETS, on January 25, 2022, OSHA announced it had decided to withdraw the vaccination and testing ETS. However, the administration noted that despite the withdrawal of the ETS as an enforceable standard, it still serves as a proposed rule that could be revised as it moves though the standard rulemaking process. As we noted above, the Supreme Court left open the possibility that the administration could issue narrower regulations for specific jobs or industries where the virus poses a special danger because of the particular features of the job or workplace.

Federal Contractor Mandate

In September 2021, President Biden issued Executive Order 14042 directing federal agencies to contractually require certain contractors and subcontractors doing business with those agencies to implement vaccine mandates with no testing alternative and other protocols, including masking, social distancing and designation of an individual to coordinate COVID-19 safety protocols at covered workplaces. Because the runway was so short, many federal contractors and subcontractors immediately began implementing the required protocols to retain federal contracts.

Then in December 2021, several federal district courts issued preliminary injunctions blocking the federal contractor mandate for reasons somewhat different than the arguments raised against the OSHA ETS, including that the federal vaccine mandate violates state sovereignty by prohibiting states from exercising their police power to establish laws regarding workplace vaccination policies, and that the vaccination mandate is inconsistent with the federal procurement laws and the Administrative Procedure Act. As a result of the injunctions issued by federal courts in Kentucky, Georgia, Louisiana, Missouri, Florida and Texas, the federal contractor mandate is currently enjoined nationwide. Appeals of these decisions have been made by the federal government to the Fifth, Sixth, Eighth and 11th circuits. At this time, it appears the appeals will not be decided until Spring 2022. So for now, the government cannot enforce the federal contractor mandate, but private parties can contract between themselves and agree to voluntarily comply with the provisions of the proposed rule and in such case, that agreement would be enforceable as long as the relevant state and/or local jurisdiction does not prohibit mandates.

With All These Moving Parts, What Is a Reasonable Employer to Do?

If your head is spinning and you are wondering how you are going to keep your workplace safe, retain your workforce, and comply with your ultimate legal responsibilities, you are not alone. Many employers are wondering what will come next and how can they get out ahead of it while keeping workers reasonably happy. Although you may have been relieved to hear that the OSHA ETS and federal contractor mandates are stayed and enjoined respectively, we do not recommend abandoning all efforts to mitigate the spread of COVID-19 in your workplace. In fact, we recommend continuing to monitor developments and updates to guidance issued by OSHA and the CDC so that you can keep your plan to mitigate and prevent the spread of COVID-19 in your workplace up to date; and if you don’t already have such a written plan in place, we recommend preparing one. OHSA’s Protecting Workers Guidance is a good place to start in order to determine what continues to be expected of you in responding to COVID-19 despite the status of the vaccine mandates.

If you had already prepared for compliance and implemented a vaccination or testing policy, you may elect to proceed according to your plan to require vaccinations with necessary exemptions or testing and simply allow employees more time to come into compliance. Many employers have had good success with encouraging voluntary compliance through education and, in some cases, reasonable incentives. As further encouragement, we also recommend that you consider providing paid time off to workers for the time it takes to get vaccinated or recover from side effects.

If, on the other hand, you elect to either hold off on implementing a vaccination policy or withdraw a policy that had already been implemented, we strongly recommend that you nevertheless continue to require employees to stay home when they are sick, track exposures and transmissions of the virus that occur in the office, and require masking and social distancing where employees are gathered indoors. Regardless of whether you require vaccinations, or encourage and incentivize them, you should have concise, clear guidelines for when and to whom your workers should report an illness or exposure and how long they are required to quarantine or stay home from work. The CDC recently updated its guidance on these questions, which we blogged about here, and following that guidance along with the recommendations outlined here will help you fulfill your obligation under the OSHA General Duty Clause to keep your workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm.

Finally, we recommend reviewing the state and local laws where you do business or have employees to determine whether there are state or local mandates in place that require employee vaccination, weekly testing, or masking while indoors. You are free to adopt COVID-19 policies as you see fit, provided your policies comply with state and local restrictions. As of the date of this newsletter, Montana and Tennessee both prohibit vaccine mandates, and Alabama, Arkansas, Florida, Iowa, Kansas, North Dakota, Texas, Utah and West Virginia require exemptions, some above and beyond exemptions for disabilities, medical conditions and sincerely held religious beliefs. For example, Texas allows for exemptions based on “any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.” Check with your employment law attorney for specific regulations that apply to the jurisdictions where you have employees and/or do business.

Unfortunately, COVID-19 is not going away in the immediate future, so you should still be taking proactive steps to protect your workforce and keep your business going.