Where All the Federal Vaccine and Other COVID Mandates Stand Now
The Biden Administration has issued a number of COVID-related mandates applicable to employers, including: (1) OSHA’s vax-or-test Emergency Temporary Standard (ETS) for larger employers; (2) OSHA’s ETS for healthcare employers; (3) Executive Order 14042 requiring vaccination of federal contractor employees; and (4) the CMS vaccination mandate for employees of Medicare- and Medicaid-certified health care providers. All of these mandates were immediately challenged, and the status of these mandates is all over the place. As of the end of December, here’s where things stand:
OSHA’s Vax-or-Test ETS: In effect. The federal Occupational Safety and Health Administration’s ETS requires employers with 100+ employees (1) to mandate vaccinations or weekly testing/face coverings for their workforce and (2) to provide paid time to get vaccinated and recover from any adverse effects. There are a number of technical requirements with which employers must comply, as discussed in our November 4, 2021 E-lert. Immediately following the issuance of the ETS in November, the U.S. Court of Appeals for the Fifth Circuit issued a nationwide stay of the ETS. As we reported in our December 18, 2021 E-lert, the stay was lifted by the Sixth Circuit on December 17, meaning that the ETS is back in effect. OSHA then issued a statement that the original deadlines have been extended from December 6, 2021 to January 10, 2022 for all requirements but testing, which now has a deadline of February 9, 2022 (instead of January 4). However, a number of parties immediately requested the U.S. Supreme Court to reinstate the stay. The Supreme Court has set a hearing for January 7, 2022 – which means that the ETS continues to be in effect unless and until the Supreme Court issues a stay. If it decides to do so, that will occur after the hearing. In the meantime, covered employers should take steps to come into compliance with the ETS.
OSHA’s Healthcare ETS: Withdrawn. As we detailed in our June 15, 2021 E-lert, the ETS for healthcare employers imposed significant responsibilities and obligations on those employers in the context of the COVID pandemic. An ETS normally lasts for six months, at the end of which OSHA will take one of three actions: issue a regular standard, extend the ETS, or allow it to lapse. The six-month period ended on December 21, 2021, and on December 27, 2021, OSHA announced that it had withdrawn the Healthcare ETS. OSHA is working toward a permanent standard, and strongly urges healthcare employers to continue to comply with the requirements of the Healthcare ETS, stating that such compliance would be considered evidence of compliance with the general duty clause and other general standards.
Federal Contractor Vaccination Mandate: Not in effect. President Biden issued an Executive Order requiring agencies to include a clause in certain new, extended or renewed contracts, and encouraging such clauses in other contracts, compelling contractors and subcontractors to comply with guidance from the Safer Federal Workforce Task Force. Such guidance currently mandates vaccinations for almost all contractor employees. Agencies immediately began incorporating the clause into both new and existing contracts. Again, lawsuits were filed, and a federal court in Georgia issued a preliminary injunction, blocking the mandate nationwide. The U.S. Court of Appeals for the Eleventh Circuit has rejected the Biden administration’s request to lift the preliminary injunction. The matter is not yet before the Supreme Court, although it is likely headed there. At this time, the Task Force has stated that it will take no action to enforce the clause in the fifty states, D.C. and various U.S. territories.
Note that contractor employees who are onsite at federal facilities must comply with federal agency COVID-related safety protocols, which may require vaccination.
CMS’s Final Rule Requiring Vaccination: Partially in effect. The Center for Medicare and Medicaid Services issued an interim final rule requiring Medicaid and Medicare-certified healthcare providers to mandate vaccination against COVID-19 for all applicable staff. Again, multiple lawsuits were filed, and various courts have granted injunctions covering certain states. A nationwide injunction in one case was subsequently limited to the plaintiff states by a federal appellate court. Thus, the final rule is blocked in half the states, but effective in the rest. The Biden administration has asked the Supreme Court to stay the preliminary injunctions, which would allow the rule to take effect everywhere. The Supreme Court has set January 7 as the hearing date on the request to lift the stays, the same date set for the OSHA vax-or-test ETS hearing. On December 28, 2021, CMS announced that it would delay compliance dates in the states in which the rule remains effective; employees must receive their first dose of a vaccine by January 27, 2022, and must complete their vaccination series by February 28, 2022.