December 20, 2021
After a wild weekend following some headline-grabbing court rulings, employers are heading into the holidays wondering what on earth is going on with workplace COVID-19 vaccine requirements. While clarity remains elusive, our Labor & Employment attorneys have provided a current status report on the three federal vaccine mandate laws, pointing out some key issues for employers to keep in mind as the situation develops.
OSHA ETS: SIXTH CIRCUIT’S FRIDAY NIGHT SURPRISE
In a development surprising to many who have been following the federal vaccine mandate saga, on Friday, December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit issued an order lifting the stay of the OSHA Emergency Temporary Standard (“OSHA ETS”) (which requires, among other things, vaccination or testing of employees of private employers with 100 or more employees). In an opinion authored by Judge Jane B. Stanch (who was appointed by President Barack Obama), a three-judge panel determined in a 2-1 vote that, in light of the continued spread of COVID-19 variants, OSHA “must be able to respond to dangers as they evolve.”
This ruling puts the OSHA ETS, which has been challenged in multiple lawsuits including by 27 states, and which has been suspended on a nationwide basis since November 6, back in play, at least for now. The ETS includes face covering requirements, a written policy, collection of proof of vaccination, creation of a vaccination status roster, removal of COVID-19 positive or untested employees from the workplace, maintenance of employee medical records, and workforce communications about the employer’s policies and vaccine information from the Centers for Disease Control and Prevention. Covered employers will need to decide whether to adopt a mandatory vaccination policy, subject to reasonable accommodations and required exemptions, or a vaccination or weekly test policy.
Emergency appeals of the Sixth Circuit ruling, intended to reinstate the stay and ultimately kill the OSHA ETS, are already in progress, and the matter may end up being decided by the U.S. Supreme Court (“SCOTUS”) on an expedited basis, although the timeline on that process is currently uncertain. In the meantime, OSHA has provided employers a bit of a holiday reprieve, issuing a statement indicating that it will not issue any citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.
STATE OSHA PROGRAMS
For states directly under federal OSHA, the impact of the Sixth Circuit ruling reinstating the OSHA ETS is immediate. However, for the 22 states with federally-approved State Plans, the process is a bit more complicated. The U.S. Secretary of Labor’s approval of a State Plan depends on whether that State Plan “provides for the development and enforcement of safety and health standards relating to one or more safety or health issues, which standards (and the enforcement of which standards) are or will be at least as effective in providing safe and healthful employment and places of employment as the standards promulgated.” 29 U.S.C. §667(18)(c)(2). Thus, in State Plan states, the state safety agencies are required to enact their own version, at least as strict, of the OSHA mandate-or-test ETS and must notify OSHA of their intentions to do so within 15 days of the promulgation of the standard, and to act within 30 days. At this time, it is not clear whether state standards enacted in coming days and weeks in State Plan states will have the same compliance deadlines as the OSHA ETS.
FEDERAL CONTRACTOR VACCINE MANDATE STAY UPHELD
Amid the hoopla of developments with the OSHA ETS, another very important decision was issued on Friday night by the United States Court of Appeals for the Eleventh Circuit. The court denied a request to dissolve the nationwide preliminary injunction of the federal contractor vaccine mandate. The stay of the federal contractor vaccine mandate was issued by a federal judge in Georgia on December 7. Based on this second December 17 “Friday night surprise” from the Eleventh Circuit, the federal contractor vaccine mandate (which, unlike the OSHA ETS, does not have a testing alternative) remains stayed in all states. The final fate of the federal contractor vaccine mandate is not known at this time, as the case will continue to move forward, with further briefing in January. It is also possible that the Biden administration will seek expedited review of the matter, including possibly an emergency appeal to SCOTUS.
Federal contractors with 100 or more employees will be subject to the OSHA ETS, regardless of the fate of the federal contractor mandate, so they should continue to closely track developments for both rules.
CMS VACCINE MANDATE (HEALTH CARE EMPLOYERS)
This mandate probably has the most complicated current status. The vaccine mandate issued by the Centers for Medicare & Medicaid Services (“CMS”), which applies to certain employers who receive Medicare or Medicaid funds, was preliminarily enjoined on November 29 by a federal district court in Missouri. The injunction applied only to the states that had filed the lawsuit challenging the mandate, which includes Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. The following day, a federal district court in Louisiana issued a preliminary injunction against the CMS mandate in the remainder of the 50 states. However, on December 15, the U.S. Court of Appeals for the Fifth Circuit ruled that the Louisiana injunction should not apply nationwide but only to the states that were parties to that lawsuit. Those states are Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia. Then, a federal judge on December 15 granted a preliminary injunction against the mandate that applies only in Texas.
So, at the moment, the CMS mandate is enjoined in 25 of the 50 states and not enjoined (and therefore, back in force) in the other 25 of the 50 states. However, in a memo issued on December 2, while the nationwide stay of the CMS mandate was still in force, the CMS stated that it would stand down on enforcement of the rule pending resolution of the court challenges. To date, the CMS has not announced what it plans to do, if anything, in terms of resuming enforcement, in light of the partial lifting of the stay.
Employers trying to figure out how to proceed in light of recent developments with federal vaccine mandates must also consider any requirements and restrictions under state and local law. For instance, to date, Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia have all enacted laws that would restrict or impact employer vaccination requirements. These laws may conflict with some of the requirements of the OSHA ETS and other federal vaccine mandates. Some of these states, including Tennessee, are OSHA State Plans, which further complicates the situation.
Heading into 2022, employers should make sure they understand which federal vaccine laws, if any, apply to their businesses, and continue to monitor developments for those laws. For employers with 100 or more employees who have delayed implementation of a vaccine mandate-or-testing plan due to the nationwide stay of the OSHA ETS, now is the time to refresh on those requirements, keeping the upcoming January 10 and February 9 deadlines in mind.
Employers in states with OSHA State Plans and state vaccine laws (including Tennessee) should seek state-specific advice with respect to how far they must, should, or should not, go at this time, in moving forward with compliance with the OSHA ETS.
This is going to continue to be a day-by-day situation, with more unpredictable developments likely in store. Being informed, prepared, and flexible is critical. Butler Snow will continue to monitor the situation and report on any new developments.